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S.  Hrg.  103-1031,  Pt.  5 

CONFIRMATION  HEARINGS 
ON  FEDERAL  APPOINTMENTS 


HEARINGS 

BEFORE  THE 

COMMITTEE  ON  THE  JUDICIARY 
UNITED  STATES  SENATE 

ONE  HUNDRED  THIRD  CONGRESS 

SECOND  SESSION 

ON 

CONFIRMATION  OF  APPOINTEES  TO  THE  FEDERAL  JUDICIARY 


AUGUST  17,  18,  25;  SEPTEMBER  14  AND  21,  1994 


Part  5 


Serial  No.  J-103-28 


Printed  for  the  use  of  the  Committee  on  the  Judiciary 


U.! 


JUN  I  2  1996 
DEPOSITORY  DOCUMENT 


/0643-A 


S.  HRG.  103-1031,  Pt.  5 


CONFIRMATION  HEARINGS 
ON  FEDERAL  APPOINTMENTS 


HEARINGS 

BEFORE  THE 

COMMITTEE  ON  THE  JUDICIARY 
UNITED  STATES  SENATE 

ONE  HUNDRED  THIRD  CONGRESS 

SECOND  SESSION 

ON 

CONFIRMATION  OF  APPOINTEES  TO  THE  FEDERAL  JUDICIARY 


AUGUST  17,  18,  25;  SEPTEMBER  14  AND  21,  1994 


Part  5 


Serial  No.  J-103-28 


Printed  for  the  use  of  the  Committee  on  the  Judiciary 


rm£PST0N  PUBLIC  LIBRARY 
GOVERNMENT  DOCUMENTS  DEPARTMENT 
RECEIVED 


FEB  2  4  2000 


I 


22-790  CC 


U.S.  GOVERNMENT  PRINTING  OFFICE 
WASHINGTON  :  1996 


For  sale  by  the  U.S.  Government  Printing  Office 
Superintendent  of  Documents,  Congressional  Sales  Office,  Washington,  DC  20402 
ISBN  0-16-052569-1 


COMMITTEE  ON  THE  JUDICIARY 

JOSEPH  R,  BIDEN,  Jr.,  Delaware,  Chairman 

EDWARD  M.  KENNEDY,  Massachusetts  ORRIN  G.  HATCH,  Utah 

HOWARD  M.  METZENBAUM,  Ohio  STROM  THURMOND,  South  Carolina 

DENNIS  DeCONCINI,  Arizona  ALAN  K.  SIMPSON,  Wyoming 

PATRICK  J.  LEAHY,  Vermont  CHARLES  E.  GRASSLEY,  Iowa 

HOWELL  HEFLIN,  Alabama  ARLEN  SPECTER,  Pennsylvania 

PAUL  SIMON,  Illinois  HANK  BROWN,  Colorado 

HERBERT  KOHL,  Wisconsin  WILLIAM  S.  COHEN,  Maine 

DIANNE  FEINSTEIN,  California  LARRY  PRESSLER,  South  Dakota 
CAROL  MOSELEY-BRAUN,  Illinois 

Cynthia  C.  Hooan,  Chief  Counsel 

Catherine  M.  Russell,  Staff  Director 

Mark  R.  Disler,  Minority  Staff  Director 

Sharon  Prost,  Minority  Chief  Counsel 

(ID 


- 


CONTENTS 


HEARING  DATES 

Page 

Wednesday,  August  17,  1994 1 

Thursday,  August  18,  1994,  9:36  a.m  215 

Thursday,  August  18,  1994,  10:04  a.m  371 

Thursday,  August  25,  1994  473 

Wednesday,  September  14,  1994  597 

Wednesday,  September  21,  1994  867 

WEDNESDAY,  AUGUST  17,  1994 

Statements  of  Committee  Members 

DeConcini,  Hon.  Dennis  1 

Specter,  Hon.  Arlen  17 

Introduction  of  Nominees 

Johnston,  Hon.  J.  Bennett  1 

Prepared  statement 3 

Jefferson,  Hon.  William  J.  (prepared  statement) 2 

Breaux,  Hon.  John  B  3 

Sarbanes,  Hon.  Paul  S  4 

Morella,  Hon.  Constance  A  5 

Kennedy,  Hon.  Edward  M.  (prepared  statement)  6 

Romero-Barcelo,  Hon.  Carlos  A  7 

Testimony  of  Nominees 

E.  Casellas,  Guaynabo,  PR,  to  be  U.S.  District  Judge  for  the  District  of 

Puerto  Rico  9 

Questioning  by: 

Senator  Simon  11 

Senator  DeConcini 14,  21 

Daniel  R.  Dominguez,  Rio  Piedras,  PR,  to  be  U.S.  District  Judge  for  the 

District  of  Puerto  Rico  9 

Questioning  by: 

Senator  Simon  10 

Senator  DeConcini 14,  21 

Sarah  S.  Vance,  New  Orleans,  LA,  to  be  U.S.  District  Judge  for  the  Eastern 

District  of  Louisiana  13 

Questioning  by: 

Senator  DeConcini 13,  21 

William  C.  Bryson,  Bethesda,  MD,  to  be  U.S.  Circuit  Judge  for  the  Federal 

Circuit  13 

Questioning  by: 

Senator  DeConcini 13,  21 

Senator  Grassley  18 

Alphabetical  List  and  Material  Submitted 

Bryson,  William  C: 

Testimony 13 

Questionnaire 175 

(III) 


IV 

Page 

Casellas,  Salvador  E.: 

Testimony 9 

Questionnaire 23 

Dominguez,  Daniel  R.: 

Testimony 9 

Questionnaire 61 

Audited  financial  statement  (in  Spanish) 91 

Specter,  Hon.  Arlen: 

Letter  from  Michael  M.  Baylson,  of  Duane,  Morris  &  Heckscher,  attor- 
neys at  law,  Philadelphia,  PA,  Aug.  15,  1994  (with  attachment)  212 

Vance,  Sarah  S.: 

Testimony 13 

Questionnaire 100 

THURSDAY,  AUGUST  18,  1994,  9:36  A.M. 
Statements  of  Committee  Members 

Leahy,  Hon.  Patrick  J  215 

Hatch,  Hon.  Orrin  G 222 

Introduction  of  Nominee 

Norton,  Hon.  Eleanor  Holmes 216 

Testimony  of  Nominee 

Lois  J.  Schiffer,  Washington,  DC,  to  be  Assistant  Attorney  General,  Environ- 
ment and  Natural  Resources  Division,  U.S.  Department  of  Justice 217 

Questioning  by: 

Senator  Leahy 218 

Senator  Hatch 223 

Alphabetical  List  and  Material  Submitted 

Leahy,  Hon.  Patrick  J.: 

Letters  to  Senator  Patrick  J.  Leahy,  Committee  on  the  Judiciary,  Wash- 
ington, DC,  from: 

Susan  S.  Rai,  attorney  at  law,  New  York,  NY,  Feb.  10,  1994  290 

Patrick  A.  Parenteau,  director,  Environmental  Law  Center,  Vermont 

Law  School,  Feb.  15,  1994 291 

Douglas  M.  Costle,  Woodstock,  VT,  Feb.  16,  1994 292 

Mollie  H.  Beattie,  director,  U.S.  Department  of  the  Interior,  Wash- 
ington, DC,  Feb.  28,  1994 293 

Letters  to  Chairman  Joseph  R.  Biden,  Jr.,  Committee  on  the  Judiciary, 
Washington,  DC,  from: 
Nan  Aron,  executive  director,  Alliance  for  Justice  (and  15  cosigners), 

July  1,  1994  294 

G.  Jon  Roush,  president,  The  Wilderness  Society,  Washington,  DC, 

July  14,  1994  297 

Richard  J.   Lazarus,  professor  of  law,  Washington  University,  St. 

Louis,  MO,  Aug.  3,  1994 298 

James  W.  Moorman,  of  Cadwalader,  Wickersham  &  Taft,  Washing- 
ton, DC,  Aug.  5,  1994  300 

William  J.  Roberts,  legislative  director,  Environmental  Defense  Fund, 

Washington,  DC,  Aug.  5,  1994 301 

Carol  E.  Dinkins,  of  Vinson  &  Elkins  L.L.P.,  attorneys  at  law,  Wash- 
ington, DC,  Aug.  5,  1994  302 

Statement  of  Bruce  d.  Terris,  partner,  Terris,  Pravlik  &  Wagner,  Wash- 
ington, DC,  Aug.  18,  1994  303 

Attachments: 

Resume  of  environmental,  preservation,  land-use,  and  zoning 
matters  handled  by  Terris,  Pravlik  &  Wagner,  March  1993  309 


V 

Page 

Leahy,  Hon.  Patrick  J. — Continued 

Statement  of  Bruce  J.  Terris,  partner,  Terris,  Pravlik  &  Wagner,  Wash- 
ington, DC,  Aug.  18,  1994— Continued 
Attachments— Continued 

Letters  to  Lois  Schiffer,  Assistant  Attorney  General,  Environ- 
ment and  Natural  Resources  Division,  Department  of  Justice, 
Washington,  DC,  from  Terris,  Pravlik  &  Wagner,  Washington, 
DC: 

Dec.  3,  1993  336 

Oct.  27,  1993 341 

Letter  to  Susan  Lipow,  Associate  General  Counsel,  Water  Divi- 
sion, Office  of  General  Counsel,  Environmental  Protection 
Agency,  Washington,  DC,  from  P.  Douglas  Sisk,  clerk,  U.S. 
Court  of  Appeals  for  the  Third  Circuit,  Philadelphia,  PA,  June 

13,  1994  344 

Letter  to  P.  Douglas  Sisk,  clerk,  U.S.  Court  of  Appeals  for  the 
Third  Circuit,  Philadelphia,  PA,  from  Peter  R.  Steenland,  Jr., 
Chief,  Appellate  Section,  Environment  and  Natural  Resources 
Division,  Department  of  Justice,  Washington,  DC,  June  27, 

1994  345 

Brief  for  the  United  States  as  amicus  curiae,  filed  in  the  U.S. 
Court  of  Appeals  for  the  Third  Circuit,  Nos.  93-5720  and  93- 

5721,  July  1994 347 

Schiffer,  Lois  J.: 

Testimony 217 

Questionnaire 232 

THURSDAY,  AUGUST  18,  1994,  10:04  A.M. 

Statement  of  Committee  Member 

Moseley-Braun,  Hon.  Carol 371 

Introduction  of  Nominees 

Norton,  Hon.  Eleanor  Holmes 372 

D'Amato,  Hon.  Alfonse  M 373 

Markey,  Hon.  Edward  J  389 

Testimony  of  Nominees 

Laurie  O.  Robinson,  Washington,  DC,  to  be  Assistant  Attorney  General,  Office 

of  Justice  Programs 375 

Questioning  by: 

Senator  Simpson 376 

Senator  Moseley-Braun 377 

Nancy  E.  Gist,  Boston,  MA,  to  be  Director  of  the  Bureau  of  Justice  Assist- 
ance        381 

Questioning  by: 

Senator  Simpson 381 

Senator  Moseley-Braun 384 

Jan  M.  Chaiken,  Lincoln,  MA,  to  be  Director  of  the  Bureau  of  Justice  Statis- 
tics        386 

Questioning  by: 

Senator  Simpson 386 

Senator  Moseley-Braun 387 

Jeremy  Travis,  New  York,  NY,  to  be  Director  of  the  National  Institute  of 

Justice  391 

Questioning  by: 

Senator  Simpson 391 

Senator  Moseley-Braun 394 

Alphabetical  List  and  Material  Submitted 

Robinson,  Laurie  O.: 

Testimony 375 

Prepared  statement  380 


VI 

Page 

Robinson,  Laurie  O. — Continued 

Questionnaire 396 

Gist,  Nancy  E.: 

Testimony 381 

Questionnaire 426 

Chaiken,  Jan  M.: 

Testimony 386 

Questionnaire 441 

Travis,  Jeremy: 

Testimony 391 

Questionnaire 456 

THURSDAY,  AUGUST  25,  1994 

Statement  of  Committee  Member 

Kohl,  Hon.  Herbert  473 

Introduction  of  Nominees 

Breaux,  Hon.  John  B  473 

Johnston,  Hon.  J.  Bennett  (prepared  statement) 474 

Tauzin,  Hon.  W.J.  (Billy)  475 

Prepared  statement 477 

Moynihan,  Hon.  Daniel  Patrick 478 

D'Amato,  Hon.  Alfonse  M.  (prepared  statement)  479 

Boxer,  Hon.  Barbara 484 

Testimony  of  Nominees 

Stanwood  R.  Duval,  Jr.,  Houma,  LA,  to  be  U.S.  District  Judge  for  the  Eastern 

District  of  Louisiana  479 

Questioning  by:  fe 

Senator  Kohl  .7. 480 

John  Gleeson,  Brooklyn,  NY,  to  be  U.S.  District  Judge  for  the  Eastern  District 

of  New  York 482 

Questioning  by: 

Senator  Kohl  482 

R.  Samuel  Paz,  Alhambra,  CA,  to  be  U.S.  District  Judge  for  the  Central 

District  of  California  485 

Questioning  by: 

Senator  Kohl  486 

Alphabetical  List  and  Material  Submitted 

Duval,  Stanwood  R.,  Jr.: 

Testimony 479 

Questionnaire 489 

Gleeson,  John: 

Testimony 482 

Questionnaire 548 

Paz,  R.  Samuel: 

Testimony 485 

Questionnaire 576 

WEDNESDAY,  SEPTEMBER  14,  1994 

Statement  of  Committee  Member 
Heflin,  Hon.  Howell  597 

Introduction  of  Nominees 

Johnston,  Hon.  J.  Bennett  597 

Prepared  statement 598 

Dodd,  Hon.  Christopher  J  598 

Prepared  statement 599 


VII 

Page 

Lieberman,  Hon.  Joseph  I  600 

Breaux,  Hon.  John  B  603 

Moynihan,  Hon.  Daniel  Patrick 607 

Prepared  statement  introducing  Frederic  Block 608 

Prepared  statement  introducing  Allyne  Ronna  Ross 609 

Prepared  statement  introducing  Shira  A.  Scheindlin  609 

Testimony  of  Nominees 

Allyne  R.  Ross,  of  Scarsdale,  NY,  to  be  U.S.  District  Judge  for  the  Eastern 
District  of  New  York;  Shira  A.  Scheindlin,  of  Brooklyn,  NY,  to  be  U.S. 
District  Judge  for  the  Southern  District  of  New  York;  Dominic  J.  Squatrito, 
of  Manchester,  CT,  to  be  U.S.  District  Judge  for  the  District  of  Connecticut; 
Robert  N.  Chatigny,  of  Bloomfield,  CT,  to  be  U.S.  District  Judge  for  the 
District  of  Connecticut;  and  Frederic  Block,  of  Port  Jefferon,  NY,  to  be 

U.S.  District  Judge  for  the  Eastern  District  of  New  York 605 

Questioning  by: 

Senator  Heflin  605 

James  L.  Dennis,  of  New  Orleans,  LA,  to  be  U.S.  Circuit  Judge  for  the 

Fifth  Circuit 611 

Questioning  by: 

Senator  Heflin  611 

Alphabetical  List  and  Material  Submitted 

Block,  Frederic: 

Testimony 605 

Questionnaire 773 

Chatigny,  Robert  N.: 

Testimony 605 

Questionnaire 725 

Dennis,  James  L.: 

Testimony 611 

Questionnaire 827 

Ross,  Allyne  R.: 

Testimony 605 

Questionnaire 613 

Scheindlin,  Shira  A.: 

Testimony 605 

Questionnaire 646 

Squatrito,  Dominic  J.: 

Testimony  605 

Questionnaire 688 

WEDNESDAY,  SEPTEMBER  21,  1994 

Statement  of  Committee  Member 

Simon,  Hon.  Paul 867 

Introduction  of  Nominees 

Mikulski,  Hon.  Barbara  A 867 

Prepared  statement  868 

Bond,  Hon.  Christopher  S  869 

Danforth,  Hon.  John  C.  (prepared  statement)  870 

Lugar,  Hon.  Richard  G 871 

Jacobs,  Hon.  Andrew,  Jr  872 

Wofford,  Hon.  Harris  873 

Specter,  Hon.  Arlen  873 

Sarbanes,  Hon.  Paul  S  874 

Morella,  Hon.  Constance  A  876 

Warner,  Hon.  John  W 876 

Prepared  statement 877 

Gephardt,  Hon.  Richard  A  877 

Prepared  statement 878 

Durbin,  Hon.  Richard  J  879 


VIII 

Page 

Coats,  Hon.  Dan  (prepared  statement)  880 

Moseley-Braun,  Hon.  Carol 882 

Prepared  statement 887 

Testimony  of  Nominees 

David  S.  Tatel,  Chevy  Chase,  MD,  to  be  U.S.  Circuit  Judge  for  the  District 

of  Columbia  Circuit 880 

Questioning  by: 

Senator  Simon  881 

David  H.  Coar,  Chicago,  IL,  to  be  U.S.  District  Judge  for  the  Northern 

District  of  Illinois  883 

Questioning  by: 

Senator  Simon  883 

Senator  Mosely-Braun  884 

Paul  E.  Riley,  Edwardsville,  IL,  to  be  U.S.  District  Judge  for  the  Southern 

District  of  Illinois  885 

Questioning  by: 

Senator  Simon  885 

Senator  Mosely-Braun  886 

Robert  J.  Cindrich,  Pittsburgh,  PA,  to  be  U.S.  District  Judge  for  the  Western 

District  of  Pennsylvania  888 

Questioning  by: 

Senator  Simon  888 

Catherine  D.  Perry,  St.  Louis,  MO,  to  be  U.S.  District  Judge  for  the  Eastern 

District  of  Missouri  890 

Questioning  by: 

Senator  Simon  890 

David  F.  Hamilton,  Zionsville,  IN,  to  be  U.S.  District  Judge  for  the  Southern 

District  of  Indiana 892 

Questioning  by: 

Senator  Simon  893 

Witnesses 

Robert  P.  Watkins,  immediate  past  chair,  Standing  Committee  on  Federal 
Judiciary,  American  Bar  Association,  accompanied  by  William  E.  Willis, 
chair,  Standing  Committee  on  Federal  Judiciary,  American  Bar  Association      895 
Questioning  hy: 

Senator  Simon  898 

Alphabetical  List  and  Material  Submitted 

Cindrich,  Robert  J.: 

Testimony 888 

Questionnaire 1059 

Coar,  David  H.: 

Testimony 883 

Questionnaire 1003 

Hamilton,  David  F.: 

Testimony 892 

Questionnaire 1127 

Perry,  Catherine  D.: 

Testimony 890 

Questionnaire 1098 

Riley,  Paul  E.: 

Testimony 885 

Questionnaire 1032 

Tatel,  David  S.: 

Testimony 880 

Questionnaire 902 

Watkins,  Robert  P.: 

Testimony 895 

Prepared  statement 900 

Willis,  William  E.: 

Testimony 895 

Prepared  statement 899 


IX 

Page 

ALPHABETICAL  LIST  OF  NOMINEES  FOR  FEDERAL  APPOINTMENTS 

Block,  Frederic,  of  Port  Jefteron,  NY,  to  be  U.S.  District  Judge  for  the  Eastern 
District  of  New  York  605 

Bryson,  William  C,  Bethesda,  MD,  to  be  U.S.  Circuit  Judge  for  the  for 
file  Federal  Circuit 13 

Casellas,  E.,  Guaynabo,  PR,  to  be  U.S.  District  Judge  for  the  District  of 
Puerto  Rico  9 

Chaiken,  Jan  M.,  Lincoln,  MA,  to  be  Director  of  the  Bureau  of  Justice  Statis- 
tics        386 

Chatigny,  Robert  N,  of  Bloomfield,  CT,  to  be  U.S.  District  Judge  for  the 
District  of  Connecticut 605 

Cindrich,  Robert  J.,  Pittsburgh,  PA,  to  be  U.S.  District  Judge  for  the  Western 
District  of  Pennsylvania  888 

Coar,  David  H.,  Chicago,  IL,  to  be  U.S.  District  Judge  for  the  Northern 
District  of  Illinois  883 

Dennis,  James  L.,  of  New  Orleans,  LA,  to  be  U.S.  Circuit  Judge  for  the 
Fifth  Circuit 611 

Dominguez,  Daniel  R.,  Rio  Piedras,  PR,  to  be  U.S.  District  Judge  for  the 
District  of  Puerto  Rico  9 

Duval,  Stanwood  R.,  Jr.,  Houma,  LA,  to  be  U.S.  District  Judge  for  the  East- 
ern District  of  Louisiana 479 

Gist,  Nancy  E.,  Boston,  MA,  to  be  Director  of  the  Bureau  of  Justice  Assist- 
ance        381 

Gleeson,  John,  Brooklyn,  NY,  to  be  U.S.  District  Judge  for  the  Eastern 
District  of  New  York  482 

Hamilton,  David  F.,  Zionsville,  IN,  to  be  U.S.  District  Judge  for  the  Southern 
District  of  Indiana 892 

Paz,  R.  Samuel,  Alhambra,  CA,  to  be  U.S.  District  Judge  for  the  Central 
District  of  California  485 

Perry,  Catherine  D.,  St.  Louis,  MO,  to  be  U.S.  District  Judge  for  the  Eastern 
District  of  Missouri  890 

Riley,  Paul  E.,  Edwardsville,  IL,  to  be  U.S.  District  Judge  for  the  Southern 
District  of  Illinois  885 

Robinson,  Laurie  O.,  Washington,  DC,  to  be  Assistant  Attorney  General, 
Office  of  Justice  Programs 375 

Ross,  Allyne  R.,  of  Scarsdale,  NY,  to  be  U.S.  District  Judge  for  the  Eastern 
District  of  New  York  605 

Scheindlin,  Shira  A,  of  Brooklyn,  NY,  to  be  U.S.  District  Judge  for  the 
Southern  District  of  New  York  605 

Schiffer,  Lois  J.,  Washington,  DC,  to  be  Assistant  Attorney  General,  Environ- 
ment and  Natural  Resources  Division,  U.S.  Department  of  Justice 217 

Squatrito,  Dominic  J.,  of  Manchester,  CT,  to  be  U.S.  District  Judge  for  the 
District  of  Connecticut 605 

Tatel,  David  S.,  Chevy  Chase,  MD,  to  be  U.S.  Circuit  Judge  for  the  District 
of  Columbia  Circuit 880 

Travis,  Jeremy,  New  York,  NY,  to  be  Director  of  the  National  Institute 
of  Justice 391 

Vance,  Sarah  S.,  New  Orleans,  LA,  to  be  U.S.  District  Judge  for  the  Eastern 
District  of  Louisiana  13 


NOMINATIONS  OF  SALVADOR  E.  CASELLAS, 
DANIEL  R.  DOMINGUEZ,  SARAH  S.  VANCE, 
TO  BE  U.S.  DISTRICT  JUDGES;  AND  WIL- 
LIAM C.  BRYSON,  TO  BE  U.S.  CIRCUIT 
JUDGE 


WEDNESDAY,  AUGUST  17,  1994 

United  States  Senate, 
Committee  on  the  Judiciary, 

Washington,  DC. 

The  committee  met,  pursuant  to  notice,  at  2:08  p.m.,  in  room 
SD-226,  Dirksen  Senate  Office  Building,  Hon.  Dennis  DeConcini 
presiding. 

Also  present:  Senators  Simon,  Grassley,  and  Specter. 

OPENING  STATEMENT  OF  SENATOR  DeCONCINI 

Senator  DeConcini.  The  Senate  Judiciary  Committee  will  come 
to  order.  This  afternoon,  we  will  conduct  a  hearing  on  four  nomi- 
nees, one  for  a  position  on  the  circuit  court  and  three  for  Federal 
district  courts.  As  is  customary,  the  nominees  will  be  introduced  to 
the  committee  by  their  Senators  or  Representatives  from  their  re- 
spective homes  States. 

Prior  to  hearing  from  the  members  who  are  present  today,  I 
want  to  state  for  the  record  that  each  nominee  has  completed  a  de- 
tailed questionnaire,  and  the  public  portions  of  the  questionnaires 
will  be  printed  in  the  record  of  this  hearing. 

Furthermore,  the  record  will  be  kept  open  for  a  limited  time  in 
the  event  that  any  other  written  testimony  is  offered  or  the  other 
members  wish  to  submit  written  questions. 

The  nominees  will  be  introduced  in  the  following  order.  We  will 
first  take  Ms.  Sarah  Vance  from  New  Orleans,  to  be  U.S.  district 
judge  for  the  eastern  district  of  Louisiana.  We  are  pleased  to  have 
Senators  Bennett  Johnston  and  John  Breaux  here  to  introduce  her. 

Senator  Johnston,  you  may  proceed. 

STATEMENT  OF  HON.  J.  BENNETT  JOHNSTON,  A  U.S.  SENATOR 
FROM  THE  STATE  OF  LOUISIANA 

Senator  Johnston.  Thank  you  very  much,  Mr.  Chairman.  First, 
I  would  like  to  put  in  the  statement  of  Congressman  William  Jef- 
ferson, who  is  voting  right  now. 

Senator  DeConcini.  It  will  be  included. 

[The  prepared  statement  of  Mr.  Jefferson  follows:] 

(l) 


Prepared  Statement  of  Hon.  William  Jefferson,  a  Representative  in 
Congress  from  the  State  of  Louisiana 

Good  afternoon,  Mr.  Chairman  and  members  of  the  committee.  I  am  honored  and 
pleased  to  be  here  today  with  Senators  Johnston  and  Breaux  in  presenting  Sarah 
S.  Vance  to  this  committee.  I  believe  that  Sarah  Vance  will  be  an  excellent  addition 
to  the  U.S.  District  Court  for  the  Eastern  District  and  I  applaud  President  Clinton 
for  nominating  her. 

I  believe  that  Sarah  Vance  will  serve  in  the  tradition  of  some  of  the  outstanding 
jurists  that  have  served  on  the  district  court  in  New  Orleans. 

Sarah  Vance  brings  a  wealth  of  trial  experience  and  an  outstanding  educational 
background  to  the  court.  Sarah  has  made  it  a  practice  of  excelling  in  her  educational 
endeavors  by  finishing  first  in  her  class  at  Louisiana  State  University  and  at  Tulane 
University  School  of  Law.  She  has  also  excelled  in  her  legal  practice. 

Sarah  has  developed  a  broad  legal  practice  at  the  New  Orleans  law  firm  of  Stone, 
Pigman,  Walther,  Wittman  &  Hutchinson  in  the  areas  of  commercial  litigation,  anti- 
trust, banking,  securities,  and  white  collar  criminal  defense.  These  are  complex 
areas  of  law  that  are  a  major  part  of  the  Eastern  District  Court's  caseload. 

Sarah  has  also  written  extensively  and  has  participated  in  many  symposiums  in 
these  areas. 

Mr.  Chairman,  Sarah  Vance  has  a  well  earned  reputation  for  competency  and  in- 
tegrity in  our  legal  community,  and  I  feel  certain  that  she  will  distinguish  herself 
as  a  scholar  on  the  bench. 

For  these  reasons,  I  strongly  urge  this  committee  to  recommend  Sarah  Vance  to 
the  full  Senate  for  confirmation  to  the  U.S.  District  Court  for  the  Eastern  District 
of  Louisiana. 

Mr.  Chairman,  I  appreciate  the  opportunity  to  appear  before  your  committee  this 
afternoon. 

Thank  you. 

Senator  Johnston.  Second,  I  would  like  to  introduce  to  the  com- 
mittee Sarah  Vance's  husband,  Pat  Vance,  and  her  son,  Robert.  Pat 
is  himself  an  outstanding  attorney  in  New  Orleans. 

Mr.  Chairman  and  Senator  Simon,  we  always  like  to  think  from 
Louisiana  we  give  you  good  nominees,  but  we  know  we  have  not 
only  a  good  nominee,  but  one  that  is  truly  outstanding.  Just  to  give 
you  a  quick  idea  of  how  outstanding  Sarah  Vance  is,  she  graduated 
first  in  her  class  from  Ascension  Catholic  High  School  in  Donald- 
sonville.  She  graduated  first  in  her  class  from  LSU,  1  out  of  1,700 
graduates.  She  graduated  first  in  her  class  from  Tulane  Law 
School,  1  out  of  186  graduates. 

At  Tulane,  she  was  managing  editor  of  the  law  review  and  a 
member  of  the  Order  of  the  Coif.  She  was  the  first  woman  partner 
in  the  outstanding  New  Orleans  law  firm  of  Stone,  Pigman.  She 
has  a  very  diverse  background  in  antitrust,  officer  liability,  securi- 
ties, professional  malpractice,  commercial  litigation,  white  collar 
crime  defense  work. 

She  is  a  member  of  the  Antitrust  Section  of  the  American  Bar 
Association.  She  is  the  chairman  of  the  Antitrust  and  Trade  Regu- 
lation Section  of  the  Louisiana  Bar  Association.  I  could  go  on  with 
the  list  of  publications  and  the  outstanding  cases  she  has  handled, 
but  suffice  it  to  say,  Mr.  Chairman,  that  she  is  at  the  very  pinnacle 
of  the  Louisiana  bar. 

I  want  to  say  it  is  rare  to  get  someone  of  her  outstanding  ability 
on  the  bench,  but  it  is  certainly  not  a  usual  occurrence  that  some- 
one who  is  in  the  top  of  every  category  we  have  the  pleasure  of 
nominating.  So  it  is  with  great  pleasure  that  I  submit  to  this  panel 
Sarah  Vance  to  be  district  judge. 

[The  prepared  statement  of  Senator  Johnston  follows:] 


Prepared  Statement  of  Senator  J.  Bennett  Johnston 

Mr.  Chairman  and  members  of  the  committee,  I  am  very  pleased  to  appear  before 
the  committee  today  for  the  purpose  of  introducing  to  you  Sarah  S.  Vance,  of  New 
Orleans,  Louisiana,  nominee  to  the  United  States  District  Court  for  the  Eastern 
District  of  Louisiana. 

It  is  most  fitting  that  an  individual  of  Ms.  Vance's  high  standards  and  eminent 
qualifications  be  nominated  for  this  very  important  position. 

Sarah  Vance  comes  to  the  committee  with  impressive  credentials,  having  served 
since  1978  as  an  associate  and  the  first  female  partner  in  the  law  firm  of  Stone, 
Pigman,  Walther,  Wittman  &  Hutchinson.  Ms.  Vance  graduated  first  in  her  class 
from  the  Tulane  University  School  of  Law  in  1978,  after  graduating  first  in  her  class 
of  more  than  1,700  students  at  Louisiana  State  University  in  1971.  The  honors  she 
received  while  attending  Tulane  Law  School  are  too  numerous  to  list  here,  but  they 
include  the  Order  of  the  Coif,  the  Gertler  Award  for  best  case  note  in  the  Tulane 
Law  Review,  and  managing  editor  of  the  Law  Review. 

Ms.  Vance  has  a  distinguished  career  in  law  and  public  service. 

Among  the  professional  organizations  to  which  Ms.  Vance  holds  membership  are 
the  American,  Louisiana  State,  New  Orleans,  and  Federal  Bar  Associations;  the  Na- 
tional Association  of  Health  Lawyers;  and  the  Tulane  Law  School  Fellows. 

Ms.  Vance  is  an  experienced  litigator  whose  areas  of  practice  include  commercial 
litigation,  antitrust,  white  collar  criminal  defense,  and  professional  malpractice. 

She  has  lectured  for  the  Louisiana  Bar  Association,  the  Federal  Bar  Association, 
Tulane  Law  School,  and  the  American  Bar  Association,  and  has  been  published  in 
the  Louisiana  Law  Journal,  Loyola  Law  Review,  and  Tulane  Law  Review. 

Sarah  Vance  is  married  to  R.  Patrick  Vance.  They  have  one  son,  Robert  Patrick 
Vance,  Jr. 

I  have  known  Sarah  Vance  for  several  years  and  found  her  to  be  very  professional 
and  competent  as  a  lawyer  and  community  leader.  Moreover,  I  am  confident  she 
possesses  the  necessary  judicial  temperament  to  serve  on  the  United  States  District 
Court  for  the  Eastern  District  of  Louisiana. 

In  sum,  I  believe  that  Ms.  Vance  possesses  the  integrity,  appropriate  demeanor 
and  aptitude  for  legal  scholarship  that  will  enable  her  to  serve  well  and  with  dis- 
tinction if  she  is  confirmed. 

Mr.  Chairman,  Sarah  S.  Vance  is  imminently  qualified  to  serve  as  a  Judge  to  the 
United  States  District  Court  for  the  Eastern  District  of  Louisiana  and  I  strongly 
urge  the  committee  act  favorably  on  her  nomination. 

Senator  DeConcini.  Thank  you,  Senator  Johnston.  Having  sat  on 
this  committee  a  number  of  years  and  witnessed  the  outstanding 
nominees  that  you  and  your  colleagues  have  recommended  to  the 
President  and  eventually  this  committee,  this  certainly  stands  out 
as  another  example  of  the  fine  lawyers  in  your  State.  So  we  are 
pleased  to  receive  your  recommendation. 

Senator  Breaux. 

STATEMENT  OF  HON.  JOHN  B.  BREAUX,  A  U.S.  SENATOR  FROM 

THE  STATE  OF  LOUISIANA 

Senator  Breaux.  Thank  you,  Mr.  Chairman,  and  Senator  Simon 
as  well  for  being  here  this  afternoon.  I  would  echo  everything  that 
Bennett  has  said  about  Sarah  Vance's  nomination  to  the  Federal 
district  court  in  the  New  Orleans  area. 

From  a  standpoint  of  qualifications  and  knowledge  and  under- 
standing of  the  law,  it  is  very  rare,  I  think,  whenever  you  have  a 
person  who  has  always  finished  first.  I  mean,  I  remember  when  I 
was  in  law  school  if  I  could  get  anyone  in  the  top  10  percent  just 
to  talk  to  me,  I  thought  it  was  pretty  good.  [Laughter.] 

I  felt  I  was  fortunate.  I  think  this  country  is  fortunate  to  have 
this  type  of  person  be  willing  to  leave  a  very  lucrative  private  prac- 
tice and  to  make  the  sacrifice  to  enter  into  the  Federal  judiciary 
at  such  an  early  age.  It  is,  I  think,  encouraging  that  people  like 
Sarah  Vance  are  willing  to  make  that  economic  and  personal  sac- 


rifice  with  a  young  family  and  a  husband,  who  also  is  in  the  prac- 
tice of  law.  I  think  we  indeed  are  very,  very  fortunate  to  have  this 
type  of  person. 

As  Bennett  has  said,  the  practice  that  she  has  engaged  in  has 
been  across  the  board.  In  addition  to  the  educational  background 
that  she  brings  to  this  position,  she  also  brings  years  of  experience 
in  the  day-to-day  workings  of  what  a  judge  has  to  do  to  be  a  great 
judge,  and  I  predict  she  will  be  a  great  judge  and  unequivocally 
recommend  her  for  your  favorable  consideration. 

Senator  DeConcini.  Thank  you,  Senator  Breaux.  I  appreciate 
those  comments  and  the  fine  recommendation  that  both  you  and 
Senator  Johnston  give  to  Ms.  Vance.  We  will  question  her  in  a  lit- 
tle bit  and  have  her  make  an  opening  statement.  We  appreciate 
your  comments  very  much. 

We  will  now  turn  to  the  introduction  of  William  C.  Bryson,  of  Be- 
thesda,  MD. 

Senator  Sarbanes,  if  you  would  come  forward. 

STATEMENT  OF  HON.  PAUL  S.  SARBANES,  A  U.S.  SENATOR 
FROM  THE  STATE  OF  MARYLAND 

Senator  Sarbanes.  Senator  DeConcini  and  Senator  Simon,  I  am 
very  pleased  to  be  here  this  afternoon  to  introduce  William  C. 
Bryson,  a  distinguished  resident  of  Maryland  who  has  been  nomi- 
nated by  the  President  to  serve  as  a  U.S.  circuit  judge  for  the  Fed- 
eral Circuit.  Bill  is  sitting  right  here  behind  me. 

I  must  say  he  brings  an  extraordinary  record  before  this  commit- 
tee, a  graduate  of  Harvard  College,  magna  cum  laude,  in  1969,  and 
from  the  University  of  Texas  Law  School  in  1973,  where  he  was 
editor-in-chief  of  the  Texas  Law  Review. 

After  he  graduated  from  the  University  of  Texas  Law  School,  he 
clerked  first  for  Judge  Henry  Friendly,  one  of  our  Nation's  most 
distinguished  jurists,  in  the  second  circuit,  and  then  was  law  clerk 
for  Justice  Thurgood  Marshall  on  the  Supreme  Court. 

Bill  Bryson  then  went  into  practice  here  in  Washington  for  3 
years  where  he  did  civil  and  criminal  litigation,  mainly  Federal,  at 
the  trial  and  appellate  levels.  Since  1978 — in  other  words,  for  the 
last  15,  16  years — he  has  been  in  the  Department  of  Justice  in  in- 
creasingly more  senior  and  responsible  positions. 

He  started  as  assistant  to  the  Solicitor  General.  He  then  became 
chief  of  the  Appellate  Section  in  the  Criminal  Division.  He  then 
was  Special  Counsel  to  the  Organized  Crime  and  Racketeering  Sec- 
tion of  the  Criminal  Division;  that  was  from  1982  to  1986. 

From  1986  to  the  present,  he  has  been  in  the  Solicitor  General's 
office.  He  was  a  Deputy  Solicitor  General,  one  of  four  deputies  to 
the  Solicitor  General  responsible  for  supervising  and  briefing  and 
the  argument  of  cases  before  the  Supreme  Court.  He  twice  has 
been  the  Acting  Solicitor  General.  In  between  the  resignation  of 
one  Solicitor  General  and  the  appointment  of  another,  he  served  as 
the  Acting  Solicitor  General.  Until  just  a  few  weeks  ago,  he  was 
Acting  Associate  Attorney  General  following  the  resignation  of 
Webster  Hubbell. 

So  he  has,  in  effect,  given  a  career  of  dedicated  public  service  in 
the  Justice  Department,  and  he  has  been  recognized  at  every  step 


along  the  way  and  I  just  want  to  mention  two  or  three  of  these  rec- 
ognitions. 

In  1984,  the  Federal  Bar  Association  gave  him  the  Tom  C.  Clark 
Award.  It  is  awarded  annually  to  a  Federal  agency  lawyer  for  out- 
standing service  as  a  government  lawyer.  In  1985,  he  received  the 
Department  of  Justice  Exceptional  Service  Award,  the  highest 
award  in  the  Department  of  Justice.  It  is  given  annually  to  the 
Justice  Department  attorney  who  has  rendered  the  most  excep- 
tional service.  In  1990,  he  was  the  first  recipient  of  the  Beatrice 
Rosenberg  Award,  which  is  awarded  annually  by  the  District  of  Co- 
lumbia bar  for  outstanding  service  as  a  government  attorney. 

He  has  had  an  extraordinary  record.  It  is  one  of  very  distin- 
guished public  service.  I  think  this  appointment  is  very  well  mer- 
ited. He  will  be  an  outstanding  member  of  the  Federal  circuit,  and 
I  commend  him  to  the  committee  most  strongly  and  urge  your  fa- 
vorable recommendation.  I  look  forward  to  his  early  confirmation 
by  the  Senate. 

Senator  DeConcini.  Thank  you,  Senator  Sarbanes.  We  appre- 
ciate your  taking  the  time  to  introduce  Mr.  Bryson  and  your  strong, 
strong  recommendation. 

We  are  pleased  to  have  Representative  Morella  here  on  behalf  of 
the  nominee  as  well. 

Representative. 

STATEMENT   OF   HON.   CONSTANCE  A.   MORELLA,  A  REPRE- 
SENTATIVE IN  CONGRESS  FROM  THE  STATE  OF  MARYLAND 

Representative  Morella.  Thank  you.  It  is  nice  to  be  here  with 
Senator  Sarbanes.  Mr.  Chairman,  it  is  great  to  be  here  with  this 
distinguished  committee.  I  am  very  honored  to  introduce  to  the 
committee  this  afternoon  my  constituent,  William  Curtis  Bryson, 
who  has  been  nominated  to  serve  as  a  circuit  judge  on  the  U.S. 
Court  of  Appeals  for  the  Federal  circuit. 

It  is  always  a  great  pleasure  to  introduce  a  constituent  to  this 
committee  who  has  been  nominated,  but  this  is  a  particular  honor 
because  this  gentleman  is  just  so  highly,  highly  qualified.  A  review 
of  Mr.  Bry son's  impeccable  academic  credentials  and  his  profes- 
sional record  indicates  that  he  has  more  than  just  the  intellectual 
acumen  required  of  a  judge.  He  also  has  the  experience,  the  tem- 
perament, the  commitment,  and  the  integrity  to  make  him  an  out- 
standing judge.  He  will  be  a  bright  star  in  the  judicial  galaxy. 

Mr.  Chairman  and  members  of  the  committee,  I  know  that  you 
all  know  Mr.  Bryson  from  his  current  position  as  the  Deputy  Solici- 
tor General,  having  been  Acting  Solicitor  General,  and  as  the  Act- 
ing Associate  Attorney  General  with  the  U.S.  Department  of  Jus- 
tice— such  prestigious,  responsible  positions. 

Prior  to  his  arrival  at  the  Department  of  Justice  in  1978,  Mr. 
Bryson  was  in  private  practice  here  in  Washington  and  has  served 
as  a  law  clerk  for  both  former  Supreme  Court  Justice  Thurgood 
Marshall  and  former  Judge  Henry  Friendly  of  the  Second  Circuit 
Court  of  Appeals. 

When  at  the  Department  of  Justice,  and  while  receiving  his  edu- 
cation at  both  Harvard  College  and  the  University  of  Texas  School 
of  Law,  where,  incidentally,  he  was  editor-in-chief  of  the  law  re- 


view,  and,  at  Harvard,  magna  cum  laude,  Mr.  Bryson  has  been  the 
recipient  of  many  awards  and  honors. 

As  a  lawyer  at  the  Department  of  Justice,  he  has  very  effectively 
represented  the  government,  has  argued  before  the  Supreme  Court 
on  31  occasions,  and  has  second-chaired  arguments  on  more  than 
100  occasions.  In  addition,  Mr.  Bryson  has  an  active  record  in  pro 
bono  work.  Even  with  the  Department  of  Justice,  he  has  attempted 
to  serve  the  interests  of  the  disadvantaged  in  a  number  of  ways, 
especially  relating  to  employment  discrimination. 

So,  Mr.  Chairman  and  members  of  this  distinguished  committee, 
I  am  very  pleased  to  present  to  you  a  very  highly  qualified  can- 
didate for  the  Federal  Circuit  Court  of  Appeals.  I  certainly  respect- 
fully urge  this  committee  to  give  its  support  to  Mr.  Bryson's  nomi- 
nation. 

I  am  pleased  to  present  to  you  William  Curtis  Bryson,  and  I 
would  like  to  end  with  a  quote  that  I  think  aptly  describes  him 
from  Shakespeare:  a  man  of  sovereign  parts,  he  is  esteemed,  well- 
fitted  in  arms,  glorious  in  arts.  Nothing  becomes  him  ill  that  he 
would  well.  I  believe  he  will  serve  us  and  the  administration  of  jus- 
tice very  well. 

Thank  you. 

Senator  DeConcini.  Representative  Morella,  thank  you  very 
much  for  visiting  with  us  and  coming  over  here  and  offering  your 
strong  recommendation  for  Mr.  Bryson.  I  am  sure  it  will  be  influen- 
tial with  the  committee. 

Representative  Morella.  Thank  you. 

Senator  DeConcini.  We  will  now  proceed  with  Representative 
Carlos  Romero-Barcelo — I  refer  to  him  as  Governor  because  that  is 
how  I  knew  him  when  I  first  worked  with  him  many  years  ago — 
to  introduce  Salvador  Casellas,  who  will  be  nominated  as  U.S.  dis- 
trict judge  for  the  District  of  Puerto  Rico,  and  Daniel  R. 
Dominguez,  also  for  U.S.  district  judge  for  Puerto  Rico. 

Before  you  start,  Representative,  I  have  a  statement  on  behalf  of 
Senator  Kennedy.  He  has  asked  me  to  express  his  regrets  that  he 
is  unable  to  be  here  to  introduce  and  participate  in  the  introduction 
of  Mr.  Casellas  in  person.  However,  the  Senator  has  asked  me  to 
insert  in  the  record,  and  we  will  do  so  at  this  point,  a  recommenda- 
tion and  introduction  of  him. 

[The  prepared  statement  of  Senator  Kennedy  follows:] 

Prepared  Statement  of  Hon.  Edward  M.  Kennedy,  a  U.S.  Senator  from  the 

State  of  Massachusetts 

It  is  a  privilege  to  support  the  nomination  of  Salvador  E.  Casellas  to  serve  on  the 
U.S.  District  Court  for  the  District  of  Puerto  Rico. 

Mr.  Casellas  is  an  honors  graduate  of  Georgetown  University.  He  received  his  law 
degree  from  the  University  of  Puerto  Rico,  and  a  master  of  laws  degree  from  Har- 
vard Law  School. 

For  many  years,  he  has  practiced  with  the  San  Juan  firm  of  Fiddler,  Gonzalez 
&  Rodriguez,  where  he  has  earned  a  reputation  as  one  of  the  best  lawyers  in  Puerto 
Rico.  He  also  served  with  distinction  as  the  Secretary  of  the  Treasury  of  Puerto 
Rico,  where  his  expertise  in  taxes,  banking,  and  business  law  enabled  him  to  be  an 
effective  administrator  of  the  Commonwealth's  finances. 

After  his  term  of  public  service,  Mr.  Casellas  returned  to  private  practice,  where 
he  concentrated  on  the  area  of  business  law.  In  addition  to  work  for  corporations 
and  individual  clients,  Mr.  Casellas  has  advised  several  business  associations  and 
has  participated  in  the  management  of  his  law  firm. 


Mr.  Casellas  has  also  been  an  effective  advocate  of  legal  reform.  He  has  been 
working  on  a  new  code  of  Commercial  Law  for  Puerto  Rico  as  a  member  of  the 
Puerto  Rico  Academy  of  Jurisprudence,  and  he  currently  chairs  the  subcommittee 
drafting  the  new  code  to  replace  the  1883  Spanish  Code  still  in  force  in  Puerto  Rico. 

He  also  formerly  served  as  a  member  of  the  Governor's  Economic  Advisory  Coun- 
cil. 

As  these  activities  demonstrate,  Mr.  Casellas  has  devoted  a  great  deal  of  time  and 
effort  to  making  a  positive  contribution  to  the  life  of  the  people  of  Puerto  Rico.  He 
has  served  as  a  director  of  many  community  organizations,  including  the  Alliance 
for  a  Drug-free  Puerto  Rico,  the  Puerto  Rico  Legal  Aid  Society,  the  Puerto  Rico  Com- 
munity Foundation,  and  the  Puerto  Rico  Police  Advisory  Council. 

Mr.  Casellas  is  also  a  long-standing  friend  of  the  Kennedy  family.  Robert  Kennedy 
had  great  respect  for  his  ability,  his  leadership,  and  his  friendship,  and  so  do  I. 

I  am  especially  pleased,  therefore,  to  commend  President  Clinton  for  this  impres- 
sive nomination.  Mr.  Casellas  will  bring  outstanding  qualifications  to  the  District 
Court  in  Puerto  Rico.  His  career  is  a  model  of  excellence  in  the  law.  I  believe  he 
will  serve  with  great  distinction  as  a  judge,  and  I  urge  the  committee  to  recommend 
his  confirmation. 

Senator  DeConcini.  Representative,  please  proceed. 

STATEMENT  OF  HON.  CARLOS  A.  ROMERO-BARCELO, 
A  REPRESENTATIVE  IN  CONGRESS  FROM  PUERTO  RICO 

Representative  Romero-Barcelo.  Thank  you,  Mr.  Chairman  and 
distinguished  members  of  the  committee.  It  is  indeed  my  pleasure 
and  my  privilege  today  to  introduce  to  you  Mr.  Daniel  Dominguez, 
who  has  been  nominated  by  the  President  to  occupy  a  seat  on  the 
district  court  in  Puerto  Rico. 

In  Puerto  Rico,  we  have  been  fortunate  and  we  have  had  a  very 
good  selection  of  judges,  and  our  court  is  an  outstanding  court  and 
now  it  is  going  to  be  a  privileged  court  by  having  the  addition  of 
two  other  members  who  will  add  to  the  court's  capability. 

I  have  known  Danny  Dominguez  and  his  family  for  over  20 
years,  and  I  personally  assure  you  that  his  integrity  is  above  re- 
proach and  that  Mr.  Dominguez  is  an  extremely  qualified  and 
hard-working  individual.  As  a  matter  of  fact,  I  would  say  he  is 
probably  a  workaholic  who  will  definitely  be  an  asset  to  the  ranks 
of  the  Federal  judiciary. 

Mr.  Dominguez  is  a  graduate  of  Boston  University,  and  then 
graduated  from  law  school  at  the  University  of  Puerto  Rico  cum 
laude  back  in  1970.  He  has  been  in  the  private  practice  of  law  ever 
since  1970.  He  has  been  an  outstanding  attorney,  particularly  one 
of  the  outstanding  practitioners  in  constitutional  law  and  labor  law 
in  Puerto  Rico. 

He  has  been  an  adviser  for  three  Governors — Don  Luis  Ferre, 
from  1969  to  1972.  He  also  was  adviser  to  myself  when  I  was  a 
Governor  from  1976  to  1984,  and  now  he  has  also  been  an  adviser 
to  the  present  Governor,  Dr.  Pedro  Rossello.  His  law  firm, 
Dominguez  &  Totti,  is  one  of  the  outstanding  law  firms  in  Puerto 
Rico. 

He  has  participated  in  most  of  the  very  important  cases  having 
to  deal  with  labor  law  and  constitutional  law  in  Puerto  Rico,  par- 
ticularly in  civil  rights  cases  and  cases  of  job  discrimination,  rep- 
resenting the  citizens  that  have  been  discriminated  against,  and  on 
other  occasions  representing  the  government.  He  is  respected  by 
his  peers,  and  is  well  thought  of  not  only  by  his  peers,  but  also  by 
his  opponents  who  have  participated  with  him  in  court. 


8 

I  have  no  doubt  that  Mr.  Dominguez  will  be  an  outstanding 
member  of  the  court  and  that  he  will  add  to  the  luster  of  the  U.S. 
district  court  in  Puerto  Rico. 

Mr.  Chairman,  I  had  not  been  approached  by  Mr.  Casellas  to 
represent  him  here  today,  but  I  have  known  Mr.  Casellas  for  all 
my  life  and,  personally,  I  think  he  is  a  very  well-qualified  individ- 
ual. He  is  definitely  a  person  beyond  reproach.  He  is  a  very  capable 
attorney. 

I  probably  have  not  been  asked  to  represent  him  because  of  polit- 
ical differences  at  home  and  from  an  ideological  point  of  view.  I 
have  my  concerns  about  anyone  that,  even  though  he  is  a  U.S.  citi- 
zen, doesn't  believe  in  the  right  to  vote  and  the  right  to  representa- 
tion. I  put  that  in  question,  but  personally  I  have  nothing  but  good 
things  to  say  about  Mr.  Casellas  from  a  personal  point  of  view,  and 
particularly  from  a  professional  point  of  view. 

However,  there  are  questions  about  whether  a  judge  that  doesn't 
believe  in  the  right  to  vote  as  being  more  important  than  the  privi- 
leges of  not  paying  taxes  can  really  be  in  the  U.S.  district  court, 
but  that  is  something  to  be  considered  on  another  occasion. 

Senator  DeConcini.  Representative,  thank  you  very  much. 

Representative  Romero-Barcelo.  You  are  very  welcome. 

Senator  DeConcini.  Do  you  think  Mr.  Casellas  can  serve  as  a 
Federal  district  judge? 

Representative  Romero-Barcelo.  Excuse  me? 

Senator  DeConcini.  Do  you  think  he  can  serve  as  a  Federal  dis- 
trict judge? 

Representative  Romero-Barcelo.  I  don't  think  there  is  any  per- 
sonal or  professional  reason  whatsoever  for  not  serving.  What  I 
said  is  I  have  my  misgivings  from  the  point  of  view  that  I  have 
such  a  great  respect  for  the  institutions  of  democracy,  for  the  right 
to  vote  and  the  right  to  representation. 

Mr.  Casellas  believes — his  ideology  is  that  you  can  be  a  U.S.  citi- 
zen and  not  have  the  right  to  vote  and  not  have  the  right  to  rep- 
resentation, and  that  it  is  better  to  have  tax  exemption  than  to 
have  the  right  to  vote  or  the  right  to  representation.  To  me,  that 
goes  against  everything  that  I  think  of  in  democracy,  and  I  think 
that  a  U.S.  district  judge  has  to  believe  in  the  system,  has  to  be- 
lieve in  citizenship. 

Senator  DeConcini.  But  the  fact,  Representative,  that  you  have 
this  philosophical  and  political  disagreement,  in  your  opinion, 
doesn't  affect  his  ability  to  serve  as  a  Federal  judge? 

Representative  Romero-Barcelo.  I  think  that  would  be  some- 
thing that  perhaps  he  should  address  himself  to — the  fact  of  how 
much  he  is  going  to  protect  the  voting  rights  of  U.S.  citizens  and 
the  civil  rights  of  U.S.  citizens,  and  whether  he  thinks  that  it  is 
not  as  important  as  the  commonwealth  supporters  think  that  it  is 
not. 

Senator  DeConcini.  Very  good.  Thank  you. 

Representative  Romero-Barcelo.  I  think  that  by  his  answers, 
you  might  be  able  to  better  judge  that.  I  repeat  again,  from  a  per- 
sonal and  professional  point  of  view,  he  is  very  well  qualified. 

Senator  DeConcini.  Thank  you  very  much. 

Representative  Romero-Barcelo.  Thank  you. 


9 

Senator  DeConcini.  If  we  could  have  the  four  nominees  come 
forward  now,  and  while  they  are  doing  so,  I  want  to  note  that 
former  Senator  John  Culver  is  with  us  today.  Senator  Culver,  we 
are  very  glad  to  have  you  here. 

Would  you  gentlemen  and  lady  please  raise  your  right  hands?  Do 
you  swear  the  testimony  you  are  about  to  give  to  the  committee  is 
the  truth,  the  whole  truth  and  nothing  but  the  truth,  so  help  you 
God? 

Mr.  Casellas.  I  do. 

Mr.  Dominguez.  I  do. 

Ms.  Vance.  I  do. 

Mr.  Bryson.  I  do. 

Senator  DeConcini.  Senator  Simon  has  another  commitment  he 
has  to  go  to,  so  I  am  going  to  yield  to  him  for  questions  for  Mr. 
Casellas  and  Mr.  Dominguez.  If  I  could  ask  to  let  them  make  their 
introductory  statements,  is  that  all  right  with  you? 

Senator  Simon.  Absolutely,  and  introduce  any  members  of  their 
family  or  anything  like  that. 

Senator  DeConcini.  Why  don't  we  start  with  you,  Mr.  Casellas? 
Why  don't  you  make  any  introductions  you  care  to  make? 

TESTIMONY  OF  SALVADOR  E.  CASELLAS,  GUAYNABO,  PR,  TO 
BE  A  U.S.  DISTRICT  JUDGE  FOR  THE  DISTRICT  OF  PUERTO 
RICO 

Mr.  Casellas.  Thank  you,  sir,  Mr.  Chairman,  and  thank  you, 
Senator  Specter  and  Senator  Grassley  and  Senator  Simon.  It  is  a 
real  honor  and  a  privilege  to  be  before  you  this  afternoon. 

I  have  with  me  my  wife,  Carmen.  She  is  with  me  this  afternoon. 

Senator  DeConcini.  Welcome,  Ms.  Casellas. 

Mr.  Casellas.  We  have  two  Carmens,  we  have  two  Carmens. 
[Laughter.] 

Senator  Simon.  We  have  a  nominee  with  two  wives  here,  Mr. 
Chairman.  [Laughter.] 

Senator  DeConcini.  This  is  some  democracy.  What  a  country. 

Mr.  Casellas.  It  also  happens  to  be  my  favorite  opera,  but  that 
is  another  thing. 

Not  with  me  are  my  two  sons,  Salvador  Sandi,  who  is  an  attor- 
ney in  San  Juan,  and  Pablo,  who  is  an  insurance  broker  in  San 
Juan,  and  my  father,  who  is  86  years  old  and  couldn't  travel  with 
us.  This  afternoon,  also,  with  me  is  John  Culver,  a  good  friend  here 
in  Washington  and  also  Ambassador  Luis  Guinot,  who  is  on  his 
way,  but  he  will  be  with  us  this  afternoon,  sir. 

Senator  DeConcini.  Mr.  Dominguez. 

TESTIMONY  OF  DANIEL  R.  DOMINGUEZ,  RIO  PIEDRAS,  PR,  TO 
BE  A  U.S.  DISTRICT  JUDGE  FOR  THE  DISTRICT  OF  PUERTO 
RICO 

Mr.  Dominguez.  Yes.  Good  afternoon.  It  is  an  honor  to  be  before 
this  honorable  body.  I  have  with  me  my  wife,  Carmen.  [Laughter.] 

She  has  been  my  companion  and  my  wife  for  28  years.  She  is  a 
lawyer.  She  works  in  the  Supreme  Court  of  Puerto  Rico  as  the  di- 
rector of  the  judicial  conference. 

I  also  have  with  me  my  daughter,  Ivette  Marie,  educated  in  the 
Washington  area  at  American  University,  who  now  lives  in  the 


10 

Washington  area,  working  for  a  large  brokerage  house.  Missing 
that  could  not  make  the  trip  is  my  daughter,  Ivonne  Dominguez. 
She  is  a  public  servant.  She  works  for  the  Puerto  Rico  Telephone 
Company;  my  daughter,  Ivelisse  Dominguez,  who  commenced  law 
school  this  week  in  Ponce,  PR,  at  the  Catholic  University. 

Also  absent  that  could  not  make  the  trip  are  my  father  and  my 
mother,  Dan  Dominguez,  Sr.,  and  Carmen  Dominguez,  both  retired. 
They  worked  for  American  pharmaceutical  corporations;  my  father- 
in-law,  Guillermo  Irizarry  Rubio,  who  was  a  former  Secretary  of 
State  of  the  Commonwealth  of  Puerto  Rico,  a  model  of  a  public 
servant;  and  his  wife,  also  a  Carmen,  Carmen  Irizarry,  who  is  also 
a  public  servant  of  30  years  and  she  worked  in  the  public  schools 
of  Puerto  Rico. 

Thank  you  very  much. 

Senator  DeConcini.  Senator  Simon. 

QUESTIONING  BY  SENATOR  SIMON 

Senator  Simon.  Thank  you.  It  turns  out  there  are  three  Car- 
mens.  It  is  a  good  thing  three  people  didn't  stand  up  when  you 
were  about  to  introduce  your  wife.  [Laughter.] 

Let  me  say  first  that  I  am  going  to  vote  for  all  of  the  nominees. 
I  am  very  pleased  to  be  here.  I  specifically,  however,  wanted  to 
make  a  comment  or  two  and  ask  a  question  of  the  Puerto  Rican 
nominees.  I  note,  looking  at  the  background,  that  both  of  you  have 
served  in  the  U.S.  military,  and  this  relates  to  the  comments  of 
Congressman  Romero. 

Today,  Puerto  Rico  basically  has  colony  status.  We  give  it  a  dif- 
ferent name,  but  that  is  what  it  is.  Even  France,  not  the  best  colo- 
nizer in  the  world,  gave  Algeria  representation  in  the  French  Par- 
liament. You  can  serve  in  the  military  and  you  can  serve  as  U.S. 
judges,  but  you  can't  serve  as  a  voting  member  of  the  House  and 
tVip  ^pnjitfi  here 

On  the  health  bill  here  in  the  Senate— and  I  don't  know  what  is 
happening  in  the  House — between  Senator  Moynihan  and  myself, 
with  the  help,  I  hasten  to  add,  of  Senator  Mitchell,  Puerto  Rico  is 
protected,  and  I  have  from  time  to  time  been  able  to  get  amend- 
ments to  protect  Puerto  Rico  on  various  issues. 

But  real  candidly,  my  primary  obligation,  in  addition  to  the  na- 
tional obligation,  has  to  be  to  the  people  of  my  State  of  Illinois,  and 
I  would  be  interested  in  your  reflections  on  the  whole  question — 
and,  Mr.  Casellas,  particularly,  because  of  your  background,  in 
your  reflections  on  the  equal  protection  clause.  Let  me  ask  this 
question  of  both  nominees — of  the  equal  protection  clause  and  how 
that  affects  the  people  of  Puerto  Rico  today  who  are  citizens  of  this 
country,  which,  incidentally,  is  frequently  not  recognized  by  a  lot 
of  people  that  Puerto  Ricans  are  Americans  just  as  much  as  the 
four  of  us  up  here  are  Americans. 

I  would  be  happy  if  either  one  of  you  wishes  to  go  first  on  that. 

Mr.  Dominguez.  I  think  I  can  tackle  that  question,  Your  Honor. 
Unfortunately,  Puerto  Rico  suffers  that  injustice,  and  I  refer  you  to 
the  book  by  George  Toraya,  who  is  now  the  chief  judge  of  the  first 
circuit  court,  relating  to  all  the  inequities  that  Puerto  Rico  suffers. 

One  famous  case  that  went  to  the  Supreme  Court  of  the  United 
States  is  a  Social  Security  case  relating  to  health  benefits  wherein 


11 

a  person  in  the  Bronx,  NY,  had  certain  rights  and  certain  privi- 
leges and  certain  services  from  the  Federal  Government,  and  took 
a  plane  and  arrived  in  Puerto  Rico  and  he  lost  all  those  rights. 
That  is  an  enormous  inequity. 

That  is  why  I  personally  believe  in  more  participation  for  Puerto 
Ricans,  and  that  will  probably  be  fulfilled  and  would  only  be  ful- 
filled when  we  have  the  right  to  vote.  Unfortunately,  we  don't  have 
that  right.  We  are  going  to  be  citizens  where  the  Bill  of  Rights  does 
not  really  apply  to  us,  in  total,  as  they  should. 

Senator  Simon.  Mr.  Casellas. 

Mr.  Casellas.  Yes,  Senator.  As  Resident  Commissioner  Romero 
mentioned,  I  am  a  firm  believer  in  commonwealth  status,  as  con- 
ceived in  1952  by  mutual  agreement  between  the  United  States 
and  the  people  of  Puerto  Rico.  I  continue  to  be  a  believer  in  com- 
monwealth status.  I  am  very  proud  of  being  a  citizen  of  the  United 
States,  of  which  my  16  years  of  service  to  the  armed  service  bears 
witness. 

The  real  issue  in  Puerto  Rico  is  one  of  grade.  Can  and  should 
Puerto  Rico  at  this  moment,  with  one-third  of  the  per  capita  in- 
come of  the  United  States,  with  60  percent  of  its  population  not 
knowing  English,  with  no  natural  resources,  become  a  State  and 
bear  the  economic  burdens  of  statehood? 

To  me,  frankly,  I  would  love  to  vote  for  the  President  of  the  Unit- 
ed States,  I  would  love  to  vote  to  have  a  Senator  in  this  August 
body,  but  at  this  stage  in  the  historical  and  economic  development 
of  Puerto  Rico,  I  am  convinced  that  statehood  at  this  moment 
would  mean  unemployment  and  welfare  for  the  people  of  Puerto 
Rico. 

I  came  before  this  body  and  the  House  in  1976,  in  the  midst  of 
an  economic  depression  in  Puerto  Rico,  precisely  to  talk  about  this 
subject.  Puerto  Ricans  don't  want  hand-outs.  Puerto  Ricans  want 
the  dignity  of  a  job.  At  this  moment,  at  least  as  my  limited  intel- 
ligence lets  me  see  it,  the  commonwealth  arrangement — it  is  a  mu- 
tual arrangement — is  the  way  for  Puerto  Rico  to  improve  its  eco- 
nomic status. 

Unfortunately,  I  think  we  have  achieved  a  majority — we  are  21 
for  purposes  of  politics.  I  think  we  are  sophisticated  in  politics,  but 
in  economic  terms  we  are  still  not  of  legal  age.  In  order  for  Puerto 
Rico  to  make  an  intelligent  decision  on  its  final  status,  it  should 
become  of  legal  age  economically  and  socially,  and  with  our  present 
poverty  I  don't  think  we  are  yet  prepared  to  do  that. 

We  need  in  Puerto  Rico  right  now — instead  of  dividing  ourselves 
between  statehood  and  commonwealth,  what  we  should  do  is  have 
a  truce  in  the  status  issue  and  concentrate,  together  with  your 
help,  to  develop  economically  and  socially  so  that  after  achieving  at 
least  somewhere  near  Mississippi  in  economic  development,  we  are 
nearer  to  legal  age  and  the  people  of  Puerto  Rico  can  make  an  in- 
telligent decision. 

For  me,  the  political,  the  economics,  the  social — they  go  together. 
I  cannot  separate  them  because  I  do  not  want  welfare  and  lack  of 
jobs  for  my  people.  Basically,  this  is  the  way  that  I  feel,  Senator. 
As  far  as  my  citizenship,  I  wouldn't  be  here  if  I  wasn't  as  proud 
as  anybody  in  the  room.  I  have  16  years  of  service  to  the  armed 
services.  I  presently  hold  the  rank  of  civilian  aide  to  the  Secretary 


12 

of  the  Army  for  the  last  8  years,  a  citizenship  which  I  am  very 
proud  of.  But  this  is  my  difference  with  Congressman  Romero. 

Senator  Simon.  I  understand  that,  and  we  all  have  differences 
and  that  is  part  of  this  process.  Let  me  just  say,  and  I  don't  want 
to  get  into  the  statehood  issue  to  any  great  extent,  but  the  statis- 
tics you  cite  for  Puerto  Rico  could  also  have  been  cited  for  New 
Mexico  when  New  Mexico  became  a  State. 

My  question  is  your  reflection  on  the  equal  protection  clause.  Are 
the  people  of  Puerto  Rico  being  treated  properly  when  we  say  to 
them,  if  we  have  a  draft,  you  are  going  to  have  to  serve  in  the 
armed  forces,  but  we  also  say  to  them,  sorry,  we  are  not  going  to 
let  you  vote  for  a  member  of  the  U.S.  Senate,  we  are  not  going  to 
let  you  vote  for  a  member  of  the  U.S.  House  of  Representatives?  I 
am  interested  in  whether  you  think  that  we  are  complying  as  a 
government  with  the  equal  protection  clause  when  we  permit  that 
kind  of  a  situation  to  exist. 

Mr.  Casellas.  Yes,  Senator.  The  Puerto  Rico  Federal  Relations 
Act  specifically  gives  to  Puerto  Ricans  the  privileges  and  immuni- 
ties of  the  citizens  of  the  different  States.  As  far  as  the  draft  and 
some  economic  arrangements,  the  people  of  Puerto  Rico  have  on 
two  occasions  voted  to  uphold  the  present  arrangement. 

I  think  there  is  a  consensus  in  Puerto  Rico  of  injustice  in  the 
areas  that  you  speak  about.  The  real  question  is  how  to  deal  with 
the  injustices,  and  the  people  of  Puerto  Rico,  as  far  as  the  common- 
wealth status  is  concerned,  feel  that  this  should  be  discussed  with 
the  U.S.  Government  and  those  injustices  addressed  so  that  the 
people  of  Puerto  Rico  participate  within  the  relationship  and  within 
common  citizenship  to  correct  them. 

That,  I  think,  would  be  the  aspiration  of  the  commonwealthers 
in  Puerto  Rico.  But  as  far  as — there  are  injustices,  they  are  recog- 
nized. The  generic  consent  given  by  the  people  of  Puerto  Rico  to  the 
commonwealth  arrangement,  I  don't  think  is  sufficient  any  longer. 
There  are  those  injustices.  I  believe,  also,  that  very  recently  there 
was  a  plebescite  and  the  President  of  the  United  States  has  named 
a  joint  committee  to  discuss  all  of  these  things,  sir,  but  I  do  recog- 
nize those  injustices.  I  would  hope  that  through  either  of  the  two 
formulas,  we  could  together  work  to  correct  them,  sir. 

Senator  Simon.  I  thank  you,  and  my  hope  is  that  something  can 
be  done.  There  is  just  no  question  that  Puerto  Rico  gets  the  short 
end  of  the  stick  around  here.  You  look  at  issue  after  issue,  but  the 
decision  where  they  should  go  has  to  be  made  by  the  people  of 
Puerto  Rico.  There  are  those  who  benefit  economically  from  the 
present  status,  but  my  personal  belief  is,  whether  it  is  Washington, 
DC,  or  Puerto  Rico  or  any  place  else,  there  should  not  be  such  a 
thing  as  a  second-class  American  citizen. 

I  thank  you  and  I  thank  the  other  nominees  for  tolerating  this 
somewhat  unusual  dialog  at  a  nomination  hearing. 

Thank  you,  Mr.  Chairman. 

Senator  DeConcini.  Thank  you,  Senator  Simon. 

Ms.  Vance,  would  you  like  to  make  an  opening  statement? 


13 

TESTIMONY  OF  SARAH  S.  VANCE,  NEW  ORLEANS,  LA,  TO  BE  A 
U.S.  DISTRICT  JUDGE  FOR  THE  EASTERN  DISTRICT  OF 
LOUISIANA 

Ms.  Vance.  I  have  no  opening  statement,  Senator,  except  to 
thank  you  very  much  for  chairing  this  hearing  this  afternoon,  and 
I  would  like  to  thank  Senator  Specter  and  Senator  Grassley  for 
being  here  and  to  tell  you  how  honored  I  am  to  be  here  today. 

I  do  not  have  a  spouse  named  Carmen,  but  I  do  have  some  peo- 
ple I  would  like  to  introduce  to  the  committee,  if  I  may. 

Senator  DeConcini.  Please  proceed. 

Ms.  Vance.  Senator  Johnston  already  introduced  my  husband, 
Patrick,  who  is  my  husband  and  best  friend  for  23  years;  my  one 
and  only,  Bobby  Vance,  the  light  of  my  life;  my  father,  Bruno 
Savoia;  my  mother,  Sarah  Savoia;  my  sister,  Ann  Savoia — you  can 
see  we  are  subsidizing  the  airline  industry  this  week;  two  of  my 
very  best  friends,  Jan  and  Gary  McDavid,  who  are  Washington 
lawyers;  Hunter  Johnston,  a  friend  of  mine  and  my  husband's  law 
partner. 

I  think  that  is  everyone.  Thank  you,  Senator. 

Senator  DeConcini.  Thank  you  very  much. 

Mr.  Bryson,  do  you  care  to  make  any  opening  statement  or  intro- 
ductions? 

TESTIMONY  OF  WBLLIAM  C.  BRYSON,  BETHESDA,  MD,  TO  BE  A 
U.S.  CmCUIT  JUDGE  FOR  THE  FEDERAL  CmCUIT 

Mr.  Bryson.  Thank  you,  Senator.  I  would  join  the  other  nomi- 
nees in  thanking  the  committee  for  giving  us  and  me  the  privilege 
of  being  here  today.  I  would  like  to  introduce  my  parents,  who  are 
here,  Mr.  and  Mrs.  Addison  Darden;  my  wife,  Penny  Clark;  and  my 
children,  Alice  and  Ellen,  were  not  able  to  make  it  today,  but  they 
tell  me  from  their  place  on  vacation  that  they  are  with  me  in  spirit. 
[Laughter.] 

Senator  DeConcini.  I  think  they  are  very  wise  people,  consider- 
ing the  circumstances.  [Laughter.] 

QUESTIONING  BY  SENATOR  DECONCINI 

Senator  DeConcini.  Thank  you  very  much,  and  welcome  to  ev- 
eryone who  is  here  today. 

Let  me  pose  some  questions  to  all  of  the  nominees.  If  you  are 
confirmed  as  an  appellate  judge  or  a  district  judge,  at  some  time 
you  will  be  asked  to  rule  on  various  cases  that  have  been  decided 
by  the  court  of  appeals,  in  the  case  of  the  district  judge,  and  the 
Supreme  Court,  in  the  case  of  the  appellate  judge,  with  which  you 
may  personally  have  some  disagreement. 

How  do  you  approach  this,  starting  with  you,  Mr.  Bryson?  Would 
you  consider  yourself  bound  by  such  precedent? 

Mr.  Bryson.  Yes,  Senator,  I  would.  I  am  trained  as  a  common 
law  lawyer  and  believe  very  much  in  the  rule  of  law,  and  the  rule 
of  law  in  the  common  law  system  being  the  rule  of  precedent.  So 
I  would. 

Senator  DeConcini.  Ms.  Vance. 

Ms.  Vance.  Yes,  sir,  I  would  view  myself  as  bound  by  the  prece- 
dents of  my  circuit  and  of  the  U.S.  Supreme  Court. 


14 

Senator  DeConcini.  Mr.  Dominguez. 

Mr.  Dominguez.  Yes,  sir.  Not  only  under  Federal  law,  but  also 
under  common  law  of  Puerto  Rico,  we  are  bound  by  the  precedent 
of"  stare  decisis. 

Mr.  Casellas.  Most  definitely,  Senator,  in  my  case,  also,  affirma- 
tively. 

Senator  DeConcini.  One  of  the  issues  that  I  have  always  been 
deeply  interested  in  is  the  Judicial  Tenure  Act  and  the  discipline 
of  the  judiciary.  Do  you  have  any  feelings  on  whether  or  not  there 
ought  to  be  a  greater  structure  within  the  Federal  judiciary  for 
complaints  against  judges  or  disciplinary  action  to  be  taken  against 
Federal  judges? 

Mr.  Bryson. 

Mr.  Bryson.  Yes,  Senator.  I  think  that  there  should  be  room  for 
legitimate  complaints  to  be  brought  against  judges.  I  think  there 
are  instances  in  which,  just  in  my  own  experiences,  judges  who  are 
not  answerable  for  conduct  that  really  goes  well  beyond  the  limits 
even  of  a  generous  construction  of  judicial  discretion  should  not  be 
allowed  to  go  unchecked. 

The  problem,  of  course,  is  that  there  is  a  great  potential  for  in- 
timidation of  judges  by  complaints  coming  from  losing  parties  or 
parties  who  simply  have  decided  that  the  judge  is  against  them  be- 
cause their  cause  is  weak.  As  you  know,  there  are  so  many  of  those 
people  that  come  before  the  courts  that  the  potential  for  harass- 
ment of  judges  would  be  great. 

Nonetheless,  I  think,  in  the  balance,  that  we  need  probably  to  be 
willing  to  put  up  with  somewhat  more  harassment  in  the  interest 
of  having  some  avenue  for  correction  of  what  now  goes  very  often 
as  not  corrected. 

Senator  DeConcini.  Do  you  have  any  suggestions?  Should  the 
circuit  courts  all  be  required  to  have  a  disciplinary  process  or  a 
complaint  process? 

Mr.  Bryson.  I  think  the  circuit  courts  should  have  a  complaint 
process.  I  think  that  there  are  some  courts  in  which  some  forms  of 
complaint  process  are  in  place  now  and  I  think  that  that  should  be 
encouraged.  I  am  not  sure  whether  it  should  be  done  as  a  matter 
of  statute  or  as  a  matter  of  independent  decision  made  by  the  cir- 
cuit courts  on  the  basis  of  their  own  perception  of  the  degree  of  the 
problem,  but  I  think  it  would  be  a  good  idea. 

Senator  DeConcini.  Ms.  Vance. 

Ms.  Vance.  Senator,  I  understand  the  concern  for  monitoring  the 
behavior  of  judges  who  have  life  tenure  and  who  may  not  have  the 
bench  and  the  members  of  the  bar  active  in  their  supervision.  How- 
ever, there  are  Federal  statutes  that  do  permit  the  litigants  and 
frivate  members  of  the  public  to  file  a  complaint  indicating  that  a 
ederal  judge  has  acted  prejudicially  to  the  administration  of  the 
duties  of  his  office,  or  that  he  is  disqualified  by  reason  of  mental 
infirmity  or  disability  to  sit.  Those  cases  would  be  decided  by  the 
head  of  the  circuit  bench  for  the  district. 

There  are  also  a  number  of  other  Federal  statutes  that  govern 
the  behavior  of  Federal  judges  and  limit  their  practice  of  law,  their 
personal  required  disclosure  of  financial  interests,  so  that  I  think 
there  are  mechanisms  already  for  disciplining  Federal  judges.  The 
question  is  whether  or  not  they  are  utilized. 


15 

Senator  DeConcini.  You  are  in  the  third  circuit? 

Ms.  Vance.  No,  sir.  I  am  in  the  fifth  circuit. 

Senator  DeConcini.  The  fifth  circuit.  I  know  in  the  ninth  circuit 
there  certainly  have  been  a  few  examples,  and  in,  I  think,  the 
eighth  circuit  there  certainly  were  some  examples  where  those 
were  not  used,  and  maybe  there  are  examples  in  every  other  circuit 
as  well. 

My  concern  is,  that  it  seems  to  me  that  those  statutes  are  very 
difficult  to  use  and  there  ought  to  be  more  encouragement  by  the 
circuit  courts  to  use  them.  At  least  the  ninth  circuit  has  set  up  a 
complaint  process,  and  maybe  other  circuits  have,  too — maybe  the 
fifth  circuit  has — where  you  can  file  a  complaint  against  a  judge. 
Even  if  it  is  a  harassment  complaint,  you  can  file  it  as  a  citizen 
and  somebody  is  going  to  look  into  it  and  at  least  respond  to  it,  but 
it  seems  to  me  Federal  judges  are  pretty  immune  from  any  type  of 
complaint,  except  possibly  from  the  press.  But  they  don't  have  to 
run  for  office,  so  maybe  it  doesn't  make  much  difference. 

Ms.  Vance.  I  think  there  is  a  procedure  in  the  fifth  circuit  to  file 
a  complaint.  The  problem  is  that  practicing  attorneys  are  some- 
what reticent  to  file  complaints  against  sitting  judges. 

Senator  DeConcini.  Exactly,  so  do  you  have  any  suggestions  to 
make  it  easier  for  people  to  be  able  to  file  complaints? 

Ms.  Vance.  I  think  that  if  the  public  and  the  bar  were  somehow 
assured  that — there  is  no  way  you  can  file  an  anonymous  com- 
plaint; it  wouldn't  be  fair — but  that  the  process  would  be  fairly  en- 
forced and  that  the  judge  would  never  hold  it  against  them,  I  think 
there  would  be  more  complaints  filed,  but  I  don't  know  how  you 
would  go  about  assuring  that,  sir. 

Senator  DeConcini.  Mr.  Dominguez. 

Mr.  Dominguez.  Your  Honor,  I  agree  with  Ms.  Vance.  In  Puerto 
Rico,  as  a  matter  of  fact,  we  did  have  a  procedure  that  went 
through  in  the  early  1970's.  If  something  new  is  going  to  be  done, 
I  would  suggest  that  we  would  have  to  do  a  balancing  act  between 
the  independence  of  the  judge  versus  the  discipline  of  a  judge,  and 
make  sure  that  it  is  not  a  decisional  matter,  that  it  is  not  some- 
thing created  by  a  decision,  that  it  is  something  created  by  conduct 
not  relating  with,  obviously,  the  decisional  process. 

Senator  DeConcini.  Good  point. 

Mr.  Casellas. 

Mr.  Casellas.  Senator,  I  would  hope  that,  at  least  in  my  circuit, 
the  leadership  of  the  other  circuit  that  you  mentioned,  that  we  do 
have  some  sort  of  procedure  to  file  complaints.  Now,  the  statutes 
in  place,  like  Ms.  Vance  said,  might  not  be  known.  They  might  be 
cumbersome.  Maybe  they  should  be  streamlined  within  each  cir- 
cuit, and  then  let  the  bar  know  exactly  what  has  to  be  done. 

The  awareness  by  the  bar  of  the  complaint  procedure  is  very  im- 
portant. The  books  are  full  of  statutes  that  are  in  disuse.  The  com- 
plaint procedure  should  be  adopted,  in  my  opinion,  by  the  circuit, 
if  not  there  now,  but  most  importantly  discussed  and  distributed  in 
information  to  the  bar  so  that  these  complaints  can  be  filed  and 
they  don't  become  academic. 

Senator  DeConcini.  All  of  you  have  practiced  law  in  one  form  or 
another,  and  I  suspect,  as  does  any  practicing  lawyer,  you  have  had 
an  occasion  where  you  thought — maybe  you  haven't,  but  I  certainly 


16 

had  in  my  former  practice  occasions  where  I  thought  the  judge  was 
discourteous  and  lacked  some  judicial  temperament. 

I  would  like  to  ask  each  of  you,  how  do  you  intend  to  discipline 
yourself  and  maintain  a  judicial  temperament  throughout  your  life- 
time appointment? 

Mr.  Bryson. 

Mr.  Bryson.  Senator,  I  think  that  is  a  concern  that  every  judge 
has  to  think  about  as  the  judge  goes  on  to  the  bench  and  continues 
on  the  bench.  There  is,  as  you  say,  a  great  temptation  to  simply 
conclude  that  because  people  defer  to  you  that  you  are  therefore  in- 
capable of  error  and  deserve  at  least  as  much  deference,  if  not 
more,  than  you  get. 

I  think  it  is  just  a  question  of  awareness.  I  think  that,  as  a 
judge — and  I  have  seen  many  judges,  as  I  am  sure  you  have,  who 
do  this  very  well — as  a  judge,  you  have  to  remind  yourself  that  the 
fact  that  you  have  been  selected  for  this  position  doesn't  mean  that 
you  are  somehow  superior  to  the  people  that  appear  before  you  or 
the  parties  that  have  their  cases  in  your  hands.  It  doesn't  mean 
that  you  are  entitled  to  treat  them  discourteously.  It  doesn't  mean 
that  you  somehow  have  some  god-given  right  to  decree  what  their 
fates  shall  be. 

Your  authority  over  them  is  a  product  entirely  of  the  legal  sys- 
tem. You  are  a  cog  in  the  legal  system,  and  I  think  it  is  something 
that  you  have  to  remind  yourself  of  over  and  over  again.  It  is  the 
only  cure  for  the  disease. 

Senator  DeConcini.  Ms.  Vance. 

Ms.  Vance.  I  agree  that  you  have  to  remind  yourself  that  you  are 
a  public  servant  and  that  you  are  there  to  serve  the  justice  system. 
It  would  seem  to  me  that  if  you  reminded  yourself  of  the  enormous 
responsibility  you  have  to  make  decisions  that  affect  the  lives  and 
the  fortunes  and  the  liberty  of  other  people  that  that  would  be  a 
humbling  experience  and  it  wouldn't  make  you  arrogant. 

I  think  that  if  you  remind  yourself  that  life  tenure  is  designed 
to  give  you  the  independence  to  do  your  job  and  it  was  not  designed 
to  set  you  above  the  people  you  were  there  to  serve  that  you  could 
keep  everything  in  perspective  and  remain  courteous  and  even- 
handed  with  the  people  who  appear  before  you. 

Senator  DeConcini.  Mr.  Dominguez. 

Mr.  Dominguez.  Your  Honor,  I  have  a  friend,  a  judge  friend,  that 
once  said  that  judges  should  always  remember  that  they  are  ap- 
pointed and  not  anointed,  and  I  think  that  what  you  have  men- 
tioned is  precisely  an  indispensable  characteristic  of  a  judge,  espe- 
cially those,  obviously,  that  are  appointed  for  a  lifetime.  It  is  some- 
thing simply  that  you  have  to  have  the  discipline  to  follow  it 
through  throughout  all  your  career. 

Senator  DeConcini.  Mr.  Casellas. 

Mr.  Casellas.  Mr.  Chairman,  I  think  really  that  in  my  case  the 
most  important  thing  is  to  be  humble.  I  think  humility  is  the  basic 
principle  to  carry  out  any  professional  career.  I  would  start  with 
being  humble.  I  would  start  modestly,  frankly,  by  examination  of 
conscience  every  night,  which  I  do  anyhow,  for  other  reasons. 

Then  I  would  work  at  the  judicial  temperament  in  the  sense  of 
we  always  have  to  be  fair  to  both  sides.  We  have  to  make  certain 
that  both  sides  get  a  fair  shake;  be  fair  to  both  sides,  work  on  that 


17 

continually,  not  let  one  side  take  advantage  of  the  other,  work  on 
that  continually.  That,  I  think,  is  judicial  temperament.  Be  hum- 
ble, don't  be  arrogant,  and  work  at  it. 

From  the  point  of  view  of  the  persons  that  you  are  dealing  with, 
I  think  we  have  to  be  respectful,  I  think  we  have  to  be  courteous, 
and  we  have  to  listen  to  what  the  other  attorney  and  other  parties 
say.  I  would  say  these  three  things,  for  me,  working  at  it,  would 
be  judicial  temperament  put  into  practice. 

Senator  DeConcini.  Senator  Specter. 

OPENING  STATEMENT  OF  SENATOR  SPECTER 

Senator  Specter.  Thank  you,  Mr.  Chairman. 

I  believe  that  Senator  DeConcini  has  touched  on  a  really  critical 
aspect,  and  that  is  courtesy.  Senator  Thurmond  made  the  comment 
many  years  ago  that  very  much  impressed  me  which  I  repeat  when 
he  is  not  present,  and  that  was  that  the  more  power  a  person  has, 
the  more  courteous  he  or  she  should  be,  and  trial  judges  are  at  the 
top  of  that  list. 

I  think  it  is  good  just  to  spend  a  few  moments  on  the  subject, 
as  Senator  DeConcini  has,  because  you  are  all  young  men  and 
women  and  you  are  going  to  be  on  the  bench  a  long  time  and  you 
may  tend  to  forget  it.  Some  have  said  that  Federal  judges  ought 
to  run  every  6  years  and  Senators  ought  to  have  lifetime  tenure. 
[Laughter.] 

But  as  the  years  pass,  it  is  easy  to  forget  it,  and  there  is  a  qual- 
ity of  the  black  robe  and  the  permanence  in  the  life  tenure  which 
you  just  have  to  focus  on  again  and  again  and  again.  When  you  be- 
come impatient,  and  there  is  a  temptation  to  do  so,  or  lose  your 
cool,  just  think  about  the  day  that  Senator  DeConcini  and  Senator 
Thurmond  and  I  made  a  comment  or  two  about  it. 

We  do  not  customarily  go  very  deeply  into  judicial  philosophy  in 
these  sessions.  We  like  to  have  the  hearings  here,  the  format.  I 
know  you  will  be  mindful  that  you  are  judges  interpreting  the  law, 
not  making  the  law,  looking  for  the  congressional  intent,  and  fol- 
lowing the  strictures  of  the  law  and  precedent,  as  opposed  to  sub- 
stituting your  own  personal  views  of  what  the  law  should  be. 

There  are  a  lot  of  questions  which  could  be  asked  about  that,  but 
I  don't  think  we  will  advance  the  ball  very  much  by  extended  dis- 
cussion on  that  subject,  but  it  is  something  that  you  always  ought 
to  keep  in  mind. 

I  would  like  to  put  into  the  record,  Mr.  Chairman,  a  letter  which 
I  received  from  a  distinguished  attorney,  Michael  M.  Baylson,  in 
Philadelphia,  recommending  judge-to-be  Sarah  S.  Vance  based  on 
his  knowledge  of  her  work. 

[Mr.  Baylson's  letter  appears  on  p.  212.] 

Senator  Specter.  You  all  appear  to  have  good  credentials,  and 
if  the  practice  of  the  committee  holds  true,  you  will  soon  be  con- 
firmed. We  wish  you  the  very  best  on  your  new  assignments.  It  is 
a  tough  job.  We  expect  you  to  work  hard  and  we  expect  you  to  do 
justice  under  the  law. 

Thank  you,  Mr.  Chairman. 

Senator  DeConcini.  Senator  Grassley. 


18 
QUESTIONING  BY  SENATOR  GRASSLEY 

Senator  Grassley.  I  compliment  each  of  you  on  your  appoint- 
ment. I  have  some  questions  of  Mr.  Bryson.  That  doesn't  mean  that 
you  other  nominees  are  not  just  as  important,  but  I  am  not  pre- 
pared to  ask  you  questions,  and  I  would  like  to  ask  Mr.  Bryson 
more  to  have  a  discussion  with  you  than  a  lot  of  questions.  There 
is  some  participation  I  would  like  you  to  have. 

I  have  heard  excellent  reports  about  your  abilities  as  a  lawyer 
and  how  you  will  perform  as  a  judge.  I  have  heard  particularly  that 
you  are  impartial  and  independent.  I  would  like  to  address  with 
you  how  that  impartiality  and  independence  was  displayed  in  your 
current  position  as  Deputy  Solicitor  General.  I  want  to  refer  to  the 
Knox  case  that  you  know  so  much  about  and  you  know  that  I  have 
been  involved  with. 

When  it  originally  came  before  the  Supreme  Court,  the  Solicitor 
General's  office  filed  a  brief  in  opposition  to  the  petition  for  certio- 
rari. It  is  my  understanding  that  that  brief  was  filed  under  your 
signature.  What  arguments  were  contained  in  that  brief  supporting 
Knox'  conviction,  and  why  did  you  feel  that  you  wanted  to  sign 

that? 

Mr.  Bryson.  Well,  Senator,  thank  you.  The  case  as  it  came  to  the 
Supreme  Court  the  first  time  from  the  third  circuit  was  one  that 
came  up  on  writ  of  certiorari.  Of  course,  our  office,  the  Solicitor 
General's  office,  traditionally  opposes  certiorari  in  the  vast  bulk  of 
cases  coming  from  the  courts  of  appeals. 

We  looked  very  carefully  at  that  case  because  that  case  obviously 
was  a  case  of  some  sensitivity  and  some  difficulty,  but  we  con- 
cluded that  the  third  circuit's  judgment  should  be  defended  and 
that  the  Supreme  Court  did  not  need  to  grant  certiorari  in  that 

case. 

As  I  recall,  the  opposition  that  we  filed  to  certiorari— this  was, 
I  think,  filed  in  March  1993,  if  I  am  not  mistaken.  The  arguments 
we  made  were  basically  these:  first,  that  the  term  "exhibition," 
which  was  the  key  term  in  the  statute  that  was  at  issue  in  that 
case,  a  question  of  whether  there  was  a  lascivious  exhibition  of  the 
pertinent  body  parts  even  though  those  body  parts  were  covered  in 
the  films  that  were  involved— we  argued,  as  the  third  circuit  had 
held,  that  the  term  "exhibition"  did  not  necessarily  require  an  un- 
covered revelation  of  the  body  parts.  In  other  words,  you  could 
have,  at  least  under  some  circumstances,  an  exhibition  even  though 
the  body  parts  were  covered.  We,  in  other  words,  were  defending 
the  third  circuit's  position. 

We  also  argued  that  there  was  some  indication  in  the  legislative 
history  that  there  was  no  flat  requirement  of  nudity  in  order  to 
qualify  as  an  exhibition  under  the  statute.  We  further  argued  in 
urging  the  Supreme  Court  not  to  grant  certiorari  in  the  case  that 
this  was  a  case  of  first  impression.  There  was  no  conflict  among  the 
circuits,  and  that,  of  course,  is  a  very  common  ground  for  arguing, 
as  we  often  do,  that  certiorari  should  not  be  granted  in  a  particular 
case. 

I  did  sign  that  brief— you  are  correct — as  Acting  Solicitor  Gen- 
eral. 


19 

Senator  Grassley.  Unfortunately,  the  Supreme  Court  did  grant 
the  petition,  and  by  the  time  the  government's  brief  on  the  merits 
was  due  the  administration  had  changed.  What  arguments  did  the 
government  make  in  that  brief  regarding  whether  the  statute  re- 
quired the  child  to  be  essentially  nude  and  act  lasciviously  herself? 
Also,  in  conjunction  with  that,  reports  indicate  that  you  did  not 
sign  the  brief  and  that  it  was  filed  by  political  appointees.  Is  that 
correct? 

Mr.  BRYSON.  Taking  the  last  half  of  the  question  first,  Senator, 
it  is  true  that  I  did  not  sign  the  second  brief.  That  was  the  brief 
on  the  merits  after  the  Solicitor  General  had  been  appointed  and 
confirmed.  That  brief  took  the  opposition  position,  in  effect,  from 
the  brief  that  had  been  filed  in  opposition  to  the  certiorari  petition 
6  months  earlier  which  I  had  signed. 

There  is  a  custom  in  our  office  that  we,  as  lawyers,  do  not  typi- 
cally contradict  ourselves  by  switching  positions  in  a  brief.  So,  since 
that  was  a  switch  in  positions,  I  did  not  sign  the  second  brief. 

In  that  brief— this  is  the  brief  on  the  merits  that  was  filed,  I 
think,  in  September  or  October  1993 — the  office  took  the  position, 
contrary  to  what  the  third  circuit  had  held,  that,  in  fact,  some  form 
of  visibility  was  required  of  the  pertinent  body  parts  in  order  for 
there  to  be  an  exhibition. 

This  was  a  construction  of  this  term  "exhibition"  which  was  not 
defined  in  the  statute,  but  the  argument  was  that  you  couldn't 
have  an  exhibition  if  you  couldn't  see  the  item,  the  object,  the  body 
part,  that  was  purportedly  being  exhibited.  The  argument  was  that 
therefore,  since  the  third  circuit  had  relied  on  the  view  that  all  that 
was  required  was  that  there  be  a  focus  on  the  area  rather  than  an 
actual  display  of  the  body  parts  uncovered  and  nude,  therefore  the 
third  circuit's  legal  basis  for  its  ruling  upholding  the  conviction  was 
flawed  and  the  case  had  to  go  back  to  the  third  circuit. 

Now,  there  was  a  second  aspect  that  you  mentioned,  a  second 
legal  ingredient  in  the  statute  which  was  discussed  briefly  in  that 
brief.  It  wasn't  really  at  issue  in  the  case  because  it  hadn't  been 
raised  by  the  defendant,  but  it  was  the  question  of  what  the  child 
has  to  do  in  order  for  the  depiction  of  the  child  engaged  in  sexually 
implicit  conduct  to  violate  the  statute. 

Now,  as  you  know,  the  statute  has  two  separate  elements.  One 
is  a  depiction,  and  two  is  that  the  child  has  to  be  involved  in  sexu- 
ally explicit  conduct.  The  approach  that  was  taken  in  that  brief  and 
in  subsequent  filings,  in  which  our  position  has  been  clarified,  I 
think,  is  to  say  it  is  not  necessary  for  the  child  actually  to  be  in- 
tending to  act  lasciviously,  but  only  that  the  child  be  acting  in  a 
way  that  some  viewer  would  regard  as  lascivious. 

I  think  perhaps  because  the  initial  brief  was  somewhat  less  clear 
than  it  should  have  been  on  this  point,  I  think  there  has  been  some 
confusion  on  that.  But  I  think  we  have  cleared  it  up  and  that  the 
position  that  was  taken  on  remand  in  the  third  circuit  made,  I 
think,  quite  clear  that  it  was  not  necessary  for  the  child  to  be 
shown  to  have  intended  to  act  lasciviously. 

Senator  Grassley.  Do  you  have  an  opinion  as  to  why  the  Solici- 
tor General  changed  the  Department's  position? 

Mr.  Bryson.  Yes,  Senator.  I  think  that  this  was  a  case  of  the  So- 
licitor General,  whose  responsibility  it  is  to  present  to  the  Supreme 


20 

Court  his  best  conclusion  as  to  what  the  law  requires  in  light  of 
his  responsibilities  to  represent  the  United  States — in  good  faith 
and  after  close  study,  the  Solicitor  General  concluded  that  the  stat- 
ute simply  wouldn't  bear  the  construction  that  the  third  circuit  had 
put  on  it. 

Our  office  does,  on  occasion,  not  terribly  often,  but  on  occasion, 
confess  error  or  disagree  with  particular  legal  conclusions  reached 
by  courts  of  appeals  when  cases  come  before  the  Supreme  Court. 
This  was  one  of  those  instances,  and  I  have  to  say  that  although, 
of  course,  I  had  taken  the  contrary  position  6  months  earlier,  I  feel 
very  comfortable  that  the  Solicitor  General  exercised  his  authority 
in  this  case  in  good  faith  and  solely  on  the  basis  of  his  reading  of 
the  statute. 

Senator  Grassley.  Well,  as  you  know,  that  case  was  remanded 
back  to  the  third  circuit.  In  the  process  of  the  Supreme  Court  act- 
ing and  before  it  was  heard  by  the  third  circuit  again,  all  100  mem- 
bers of  the  Senate  had  voted  to  state  a  disagreement  with  the  Jus- 
tice Department's  changed  position,  specifically  that  it  was  con- 
trary to  congressional  intent.  The  House  later  passed  a  similar 
measure  nearly  unanimously,  and  then  230  Members  of  Congress 
filed  an  amicus  brief  in  the  third  circuit  against  the  government's 
position. 

In  the  final  analysis,  as  you  probably  know,  the  third  circuit 
agreed  with  us  and  not  with  the  Department.  I  assume  you  are  fa- 
miliar with  that  case.  Do  you  think  that  the  third  circuit's  opinion 
can  be  read  to  have  supported  the  Justice  Department's  changed 
arguments,  as  some  in  the  Department  are  claiming  now? 

Mr.  Bryson.  Senator,  I  think  it  is  clear  that  the  third  circuit  said 
two  things.  First,  the  third  circuit  did  reject  the  government's  anal- 
ysis of  the  exhibition  requirement.  In  that  regard,  the  third  circuit 
disagreed  with  the  position  that  the  government  had  argued  on  re- 
mand. So  it  is  not  correct  to  say  that  the  third  circuit  embraced  or 
agreed  with  the  Department's  view  in  that  regard. 

There  was  a  second  aspect  of  what  the  third  circuit  did  that  was 
consistent  with  the  government's  position,  and  it  was  this.  The 
Court  said  even  on  the  government's  theory,  which  was  a  more  re- 
strictive construction  of  the  term  "exhibition,"  we  agree  with  the 
government  that  the  evidence  in  this  case  was  sufficient  to  support 
a  conviction.  The  Court  therefore,  in  that  regard,  agreed  with  the 
government  in  its  principal  submission  that  at  least  if  you  view  the 
term  "exhibition"  more  narrowly  than  the  third  circuit,  in  fact, 
viewed  it — nonetheless,  if  you  view  it  in  that  narrow  fashion  pre- 
sented by  the  Department,  the  evidence  is  still  sufficient  to  support 
the  conviction  and  the  conviction  should  therefore  stand  on  either 
ground. 

Senator  Grassley.  I  thank  you  for  discussing  this  with  me  and 
for  other  people  to  hear,  as  well.  I  think  your  discussion  is  good. 
I  think  you  have  shown  competence  and  independence,  and  I  will 
be  glad  to  support  you  to  your  appointed  position. 

Mr.  Bryson.  Thank  you. 

QUESTIONING  BY  SENATOR  DECONCINI 

Senator  DeConcini.  Senator  Grassley,  thank  you. 


21 

Along  that  line,  let  me  ask  each  of  the  nominees  a  question  re- 
garding legislative  history  and  congressional  intent.  You  certainly 
have  expressed  some  concern  already,  Mr.  Bryson,  but  what  are 
each  of  your  views  on  the  role  of  legislative  history  when  a  court 
is  faced  with  ambiguous  language?  Specifically,  which  factors 
should  a  court  rely  on  in  a  case  of  statutory  construction  beyond 
the  statutory  language  itself? 

Mr.  Bryson.  Well,  Senator,  as  your  question  suggests,  the  first 
principle  of  statutory  construction  absolutely  must  be  to  go  to  the 
language  of  the  statute.  There  is  a  quip  that  occasionally,  I  think, 
Judge  Scalia  will  be  heard  to  repeat,  which  is  that  some  judges 
seem  to  approach  statutory  construction  by  saying  that  if  the  legis- 
lative history  is  unclear,  perhaps  we  should  resort  to  looking  at  the 
statute. 

That  is  not  the  approach  that  the  current  Supreme  Court  takes. 
It  is  not  the  approach  that  I  think  ought  to  be  taken.  The  first 
thing  to  do  is  to  go  to  the  language  of  the  statute.  The  language 
of  statutes  is  not  always  clear.  It  isn't  always  entirely  clear  how 
the  language  applies  in  a  particular  case.  There,  I  think  you  have 
to  resort — and  I  do  not  take  the  view  that  legislative  history  is  ir- 
relevant— I  think  you  have  to  resort  to  whatever  help  you  can  get 
from  legislative  history,  context,  the  background  against  which  a 
statute  was  enacted,  the  purposes  that  the  statute  was  intended  to 
serve,  the  evils  that  the  statute  was  intended  to  address. 

Those  are  the  kinds  of  evidence  that  you  can  bring  to  bear  in  try- 
ing to  get  the  entire  picture  of  what  a  statute  is  intended  to  mean, 
starting  with  the  language  of  the  statute  and  using  those  other  de- 
vices as  well. 

Senator  DeConcini.  Thank  you,  Mr.  Bryson. 

Ms.  Vance. 

Ms.  Vance.  I  think  that  I  would  agree  with  Mr.  Bryson  that  in 
construing  with  a  statute  that  you  begin  with  looking  at  the  lan- 
guage of  the  statute  to  ascertain  congressional  intent,  and  the  first 
rule  of  approach  is  the  rule  of  plain  meaning  where  you  construe 
the  words  of  the  statute  in  their  ordinary,  plain  meaning. 

If  the  plain  meaning  is  not  clear  from  the  statute  and  the  word- 
ing is  ambiguous,  I  do  think  that  it  is  appropriate  to  consider  legis- 
lative history.  I  understand  that  there  is  a  debate  as  to  the  reliabil- 
ity of  legislative  history  as  an  indication  of  congressional  intent. 
However,  I  do  think  that  there  are  certain  types  of  legislative  his- 
tory, such  as  committee  reports,  that  should  be  authoritative  on 
legislative  intent,  and  that  you  could  be  safe  in  relying  on  as  an 
indication  of  congressional  intent,  whereas  there  may  be  things 
that  are  put  in  the  record,  so  to  speak,  that  may  not  be  necessarily 
a  part  of  the  real  debate  on  the  statute. 

Senator  DeConcini.  What  about  statements  of  Members  of  Con- 
gress that  are  put  in  the  record,  who  were  involved  in  the  actual 
drafting  and  passing  of  the  legislation? 

Ms.  Vance.  I  definitely  think  that  you  should  read  them  and  con- 
sider them. 

Senator  DeConcini.  They  are  relevant,  in  your  opinion? 

Ms.  Vance.  They  are  relevant  in  the  context  of  the  debate  and 
what  the  issues  were  at  the  time  and  the  Senator's  role  in  that. 

Senator  DeConcini.  Mr.  Dominguez. 


22 

Mr.  Dominguez.  I  would  concur  with  what  my  two  colleagues 
have  said.  The  only  red  light  would  be  we  must  be  extremely  cau- 
tious with  ex  parte,  self-serving  statements  that  may  be  placed  in 
the  history  of  a  law.  You  would  have  to  look  more  at  the  live  debate 
rather  than  something  or  some  comment  that  gets  put  into  the 
record  when  nobody  is  there,  when  there  is  no  real  debate.  You 
have  to  look  with  caution  there. 

Senator  DeConcini.  Mr.  Casellas. 

Mr.  Casellas.  Sir,  I  have  little  to  add.  I  concur  with  my  col- 
leagues. When  there  is  plain  meaning,  there  should  be  plain  mean- 
ing, and  I  think  that  use  of  legislative  history  is  useful  sometimes. 

Senator  DeConcini.  Thank  you  very  much.  I  have  no  further 
questions.  I  don't  believe  Senator  Specter  does.  We  thank  you  for 
your  attention  and  your  responsiveness  today.  The  committee  will 
certainly  consider  your  testimony  and  the  comments  of  those  who 
have  spoken  on  your  behalf. 

Thank  you  very  much. 

Ms.  Vance.  Thank  you. 

Mr.  Casellas.  Thank  you. 

Mr.  Dominguez.  Thank  you. 

Mr.  BRYSON.  Thank  you,  Senator. 

Senator  DeConcini.  The  committee  will  stand  in  recess,  subject 
to  the  call  of  the  chair. 

[Whereupon,  at  3:17  p.m.,  the  committee  was  adjourned.] 

[Submissions  for  the  record  follow:] 


23 
SUBMISSIONS  FOR  THE  RECORD 


UNITED  STATES  SENATE 
QUESTIONNAIRE  FOR  JUDICIAL  NOMINEES 

1 .  Full  name  (include  any  former  names  used) 
Salvador  E.  Casellas 

2.  Address:  List  current  place  of  residence  and  office  address(es). 

Home:  A-1 1  Argentina  Street 

Urb.  Gardenville 
Guaynabo.  P.R.00966 

Office:  Chase  Manhattan  Bank  Bldg. 

5th  Floor 

254  Munoz  Rivera  Ave. 
San  Juan,  P.R.  00918 

3.  Date  and  place  of  birth. 

San  Juan,  Puerto  Rico.    June  10,  1935. 

4.  Marital  Status  (include  maiden  name  of  wife,  or  husband's  name).  List 
spouse's  occupation,  employer's  name  and  business  address(es). 

Married  to  Carmen  Ana  Toro,  housewife. 

5.  Education:  List  each  college  and  law  school  you  have  attended,  including 
dates  of  attendance,  degrees  received,  and  dates  degrees  were  granted. 

B.S.F.S.  -  International  Affairs  -  Cum  Laude  -  Georgetown  University  - 1 953  - 
1 957;  LL.B.  -  Magna  Cum  Laudfi  -  University  of  Puerto  Rico  -  1 957  -1 960; 
LL.M.  (Master  of  Laws)  -  Harvard  Law  School  -  1960  •  1961 . 

6.  Employment  Record:  List  (by  year)  all  business  or  professional  corporations, 
companies,  firms,  or  other  enterprises,  partnership,  institutions  and 
organizations,  nonprofit  or  otherwise,  including  firms,  with  which  you  were 
connected  as  an  officer,  director,  partner,  proprietor,  or  employee  since 
graduation  from  college. 


22-790  -  96  -  2 


24 


-2- 


Emplovment:  1962  to  1972  -  Fiddler,  Gonzalez  &  Rodriguez,  San  Juan, 
Puerto  Rico  -  Partner. 

Department  of  the  Treasury,  Commonwealth  of  Puerto  Rico  - 1973-1976  - 
Secretary  of  the  Treasury. 

Fiddler,  Gonzalez  &  Rodrfguez  -  1 977-Present,  San  Juan,  Puerto  Rico  - 
Partner 

Directorships:  First  Federal  Savings  and  Loan  Association,  1 982-1 983;  Roig 
Commercial  Bank,  1979-1982;  Telemundo,  Inc.,  1969-1972;  Ana  G. 
Mendez  Educational  Foundation,  1980-1983;  Puerto  Rico  Community 
Foundation,  1 984-1 987;  Metcalf  &  Eddy  de  Puerto  Rico,  1 989-1 991 ;  Puerto 
Rican  Cement  Company, Inc.,  1984-Present;  Luis  Muftoz  Marin  Foundation, 
1980  Present;  Puerto  Rico  Bar  Association  Foundation,  1985-1988;  Puerto 
Rico  Legal  Aid  Society,  1992-1993;  Banco  Bilbao  Vizcaya-Puerto  Rico, 
1984-1992;  Centro  Sor  Isolina  Ferre,  1991 -Present;  Alliance  for  a  Drug  Free 
Puerto  Rico,  1 993-Present;  Committee  on  Economic  Development,  1982- 
Present;  Comit6  Estrategia  Puerto  Rico,  1 993-Present;  Angel  Ramos 
Foundation,  1994. 

7.  Military  Service:  Have  you  had  any  military  service?  If  so,  give  particulars, 
including  the  dates,  branch  of  service,  rank  or  rate,  serial  number  and  type 
of  discharge  received. 

Yes.  ROTC  Distinguished  Military  Graduate  -  Georgetown  University,  1957. 

First  Lieutenant,  U.S.  Army,  Armor  Branch.    Served  from  July  1961  to 

November,  1962. 

United  States  Army  Reserve,  Judge  Advocate  General's  Corps  1963  to 

1967.   Honorably  Discharged  on  November  30,  1967.    Serial  Number  05- 

201-051. 

Civilian  Aide  to  the  Secretary  of  the  Army  -  1985-1989; 

Civilian  Aide  Emeritus  to  the  Secretary  of  the  Army 

1990-1994 

8.  Honors  and  Awards:  List  any  scholarships,  fellowships,  honorary 
degrees, and  honorary  society  memberships  that  you  believe  would  be  of 
interest  to  the  Committee. 

Associate  Editor  of  the  Law  Review  of  the  University  of  Puerto  Rico,  1 959- 
60. 


25 


-3- 


Award  of  the  Puerto  Rico  Bar  Association  as  the  most  outstanding  student 
in  his  class,  1960. 

Award  of  the  Puerto  Rico  Bar  Association  to  the  most  outstanding  student 
in  Common  Law  subjects,  1960. 

Fellow  -  American  Bar  Foundation 

Recognition  by  the  Federal  Home  Loan  Bank  Board  for  outstanding  service 
representing  the  Board  as  a  Director  of  First  Federal  Savings  Bank  of  Puerto 
Rico  1982-83. 

Academician  •  "Academia  Puertorriquena  de  Jurisprudencia  y  Legislaci6n" 
(Puerto  Rico  Academy  of  Jurisprudence). 

Commander's  Medal  -  Second  U.  S.  Army  -  1990 

Puerto  Rico  National  Guard  Medal  -  1992 

9.  Bar  Associations:  List  all  bar  associations, iegal  or  judicial-related  committees 
or  conferences  of  which  you  are  or  have  been  a  member  and  give  the  titles 
and  dates  of  any  offices  which  you  have  held  in  such  groups. 

American  Bar  Association 

American  Bar  Foundation 

Hispanic  Bar  Association 

Puerto  Rico  Bar  Association 

National  Conference  of  Commissioners  on  Uniforms  State  Laws 

(1967-1972) 

Law  School  Evaluating  Commission  -  1970-71 

Puerto  Rico  Commission  on  the  Bicentennial  of  the  U.  S.  Constitution  (1 987- 

1989) 

Puerto  Rico  Legal  Aid  Society  -  Director  (1992-1993) 

Puerto  Rico  Bar  Association  Foundation  •  Director  (1985-88) 

10.  Other  Memberships:  List  all  organizations  to  which  you  belong  that  are 
active  in  lobbying  before  public  bodies.  Please  list  all  other  organizations  to 
which  you  belong. 

NONE 

Comite'  Estrategia  Puerto  Rico 


26 


-4- 


Alliance  for  a  Drug  Free  Puerto  Rico 

Centro  Sor  Isolina  Ferre 

Committee  on  Economic  Development  Inc. 

Luis  Munoz  Marin  Foundation 

Caparra  Country  Club 

Banker's  Club 

Order  of  St.  John  (Knights  of  Malta) 

11.  Court  Admission:  List  all  courts  in  which  you  have  been  admitted  to 
practice,  with  dates  of  admission  and  lapses  if  any  such  memberships 
lapsed.  Please  explain  the  reason  for  any  lapse  of  membership.  Give  the 
same  information  for  administrative  bodies  which  require  special  admission 
to  practice. 

Commonwealth  of  Puerto  Rico  -  1962 
U.S.  District  Court  -  Puerto  Rico  -  1963 
U.S.  Court  of  Appeals  -  First  Circuit  -  1963 
U.S.  Customs  Court  -  1964 
U.S.  Court  of  Customs  &  Patent  Appeals  -  1968 
Supreme  Court  of  the  United  States  -  1 977 
District  of  Columbia  -  1 979 
U.  S.  Tax  Court-  1981 

12.  Published  Writings:  List  the  titles,  publishers,  and  dates  of  books,  articles, 
reports,  or  other  published  material  you  have  written  or  edited.  Please 
supply  one  copy  of  all  published  material  not  readily  available  to  the 
Committee,  also,  please  supply  a  copy  of  all  speeches  by  you  on  issues 
involving  constitutional  law  or  legal  policy.  If  there  were  press  reports  about 
the  speech,  and  they  are  readily  available  to  you,  please  supply  them. 

Note,  Mandatory  Leoal  Easements.  (Spanish)  University  of  Puerto  Rico  Law 
Review,  Vol.  XXVIII,  p.  93  (1959) 

Comments  on  New  Horizontal  Property  Law.  (Spanish)  -  University  of  Puerto 
Rico  Law  Review,  vol.  XXVIII,  p.  301  (1959) 

Leoal  Effects  of  Wills  Executed  Outside  of  Puerto  Rico  (Spanish)  -  Puerto 
Rico  Bar  Association  Law  Review,  Vol.  XX,  p.  307  (1960) 

The  Admiralty  Jurisdiction  in  the  Commonwealth  of  Puerto  Rim.  Puerto  Rico 
Bar  Association  Law  Review,  Vol.  XXII,  No.  2,  p.  165  (1962) 


27 


-5- 


Diplomatic  Antecedents  and  Causes  of  the  Spanish  American  War:  1895-98 
(Spanish),  Social  Sciences,  Review,  University  of  Puerto  Rico,  Vol.  IX,  No. 
1  p.  55  (1965). 

Recent  Court  Decisions  on  Tax  Matters  (Spanish),  Puerto  Rico  Bar 
Association  Law  Review,  Vol.  XXVI,  p.  298  (1966). 

Federal  and  Commonwealth  Jurisdiction  in  the  Field  of  Maritime  Law.  Puerto 
Rico  Bar  Association  Law  Review,  Vol.  XXVI,  No.  4,  p.  259  (1966) 

Freedom  of  the  Press  and  the  Protection  of  Reputation  (Spanish),  Review  of 
the  Puerto  Rico  Academy  of  Jurisprudence,  Vol.  1,  No.  1,  p.  27  (1989) 

(No  English  translation  exists  of  the  articles  published  in  Spanish) 

13.  Health:  What  is  the  present  state  of  your  health?  List  the  date  of  your  last 
physical  examination. 

Good.   November  1993, 

14.  Judicial  Office:  State  (chronologically)  any  judicial  offices  you  have  held, 
whether  such  position  was  elected  or  appointed,  and  a  description  of  the 
jurisdiction  of  each  such  court. 

None. 

15.  Citation:  If  you  are  or  have  been  a  judge,  provide:  (1)  citations  for  the  ten 
most  significant  opinions  you  have  written,  (2)  a  short  summary  of  and 
citations  for  all  appellate  opinions  where  your  decisions  were  reversed  or 
where  your  judgment  was  affirmed  with  significant  criticism  of  your 
substantive  or  procedural  rulings;  and  (3)  citations  for  significant  opinions  on 
federal  or  state  constitutional  issues,  together  with  the  citation  to  appellate 
court  rulings  on  such  opinions.  If  any  for  the  opinions  listed  were  not 
officially  reported,  please  provide  copies  of  the  opinions. 

None. 

1 6.  Public  Office:  State  (chronologically)  any  public  offices  you  have  held,  other 
than  judicial  offices,  including  the  terms  of  service  and  whether  such 
positions  were  elected  or  appointed.  State  (chronologically)  any 
unsuccessful  candidacies  for  elective  public  office. 


28 


-6- 


Secretary  of  the  Treasury  of  Puerto  Rico  -  1973-1976. 
This  was  an  appointed  office,  t  have  never  been  a  candidate  for  any  elective 
public  office.  I  served  on  the  Puerto  Rico  Police  Advisory  Council  (1991- 
1992);  as  a  Trustee  of  the  Puerto  Rico  National  Guard  Trust  (1991-1992); 
as  a  member  of  the  Municipal  Reform  Commission  (1992);  member  of  the 
Governor's  Economic  Advisory  Council  (1986-1989);  Director  of  the 
Government  Development  Bank  of  Puerto  Rico  (1976);  member,  Governor's 
Finance  Council  (1973-1976);  member,  Puerto  Rico  Commission  to  Combat 
Crime  (1973-1976). 

17.      Legal  Career: 

a.  Describe  chronologically  your  law  practice  and  experience  after 
graduation  from  law  school  including: 

1 .  whether  you  served  as  clerk  to  a  judge,  and  if  so,  the  name  of 
the  judge,  the  court,  and  the  dates  of  the  period  you  were  a 
clerk; 

NO 

2.  whether  you  practiced  alone,  and  if  so,  the  addresses  and 
dates; 

NO 

3.  the  dates,  names  and  addresses  of  law  firms  or  offices, 
companies  or  governmental  agencies  with  which  you  have  been 
connected,  and  the  nature  of  your  connection  with  each. 

After  graduating  from  law  school  and  finishing  my  military  service,  I 
joined  the  firm  of  Fiddler,  Gonzalez  &  Rodrfguez  in  San  Juan,  Puerto  Rico  in  1962. 
I  became  a  partner  in  1965.  From  1962  to  1972  I  practiced  law  with  this  firm. 
In  January,  1973,  I  became  Secretary  of  the  Treasury  of  Puerto  Rico  until 
December,  1976.  In  January,  1977  I  rejoined  the  firm  of  Fiddler,  Gonzalez  & 
Rodrfguez  as  a  partner  and  I  am  still  at  the  firm. 

b.  1.        What  has  been  the  general  character  of  your  law  practice, 

dividing  it  into  periods  with  dates  if  its  character  has  changed 
over  the  years? 


29 


-7- 


2.        Describe  your  typical  former  clients,  and  mention  the  areas,  if 
any,  in  which  you  have  specialized. 

(1 )  During  the  first  ten  years  of  my  practice  (1 962-1 972),  I  had  a  varied 
practice  with  considerable  litigation  in  Federal  and  State  courts.  During  the  time 
that  I  was  Secretary  of  the  Treasury,  I  gained  experience  in  tax,  legislative,  fiscal 
and  government  matters.  In  1977,  I  rejoined  the  firm,  and  I  practiced  principally 
in  the  fields  of  corporate,  banking  and  tax  law.  During  this  time  I  participated  in  the 
important  tax  litigation  of  the  firm,  and  as  counsel  in  general  litigation.  I  also 
participated  in  several  appeals  to  the  Supreme  Court  of  Puerto  Rico.  So,  generally 
speaking,  my  practice  has  been  divided  into  the  first  phase  (1962-1972)  in  which 
I  litigated  continuously  in  both  Federal  and  Commonwealth  courts;  and  the  second 
half  from  1977  onwards  in  which  I  practiced  general  business  law  with  a 
concentration  in  taxes. 

(2)  My  typical  clients  during  the  last  ten  years  have  been  corporate  such 
as  The  Chase  Manhattan  Bank,  N.  A.,  Westinghouse  Electric  Corporation,  American 
Airlines,  United  Parcel  Service,  and  non-profits  such  as  The  Conservation  Trust  of 
Puerto  Rico,  Triple-S  (Blue  Shield  Plan),  Centro  Sor  Isolina  Ferr6  and  the  Alliance  for 
a  Drug  Free  Puerto  Rico.  Since  1977, 1  have  specialized  in  taxes,  general  corporate 
law  and  banking.  I  have  been  a  director  of  four  banking  institutions,  one  of  them 
representing  the  Federal  Home  Loan  Bank  Board  on  its  Board  of  Directors. 

c.  1 .  Did  you  appear  in  court  frequently,  occasionally,  or  not  at  all? 
If  the  frequency  of  your  appearances  in  court  varied,  describe 
each  such  variance,  giving  dates. 

During  my  active  litigation  practice  (1962-1972)  I  appeared  regularly 
before  the  Federal  and  State  Courts.  I  handled  a  diversity  of  cases  from  tort 
claims  against  insurers,  to  admiralty  litigation,  contract  cases  and  tax  cases. 

2.        What  percentage  of  these  appearances  was  in: 

(a)  federal  courts; 

(b)  state  courts  of  record; 

(c)  other  courts. 

About  half  of  the  litigation  was  in  the  Federal  Court  and  the  other  half 
in  the  Commonwealth  Courts.  I  did  try  a  couple  of  cases  in  the  U.  S. 
Customs  Court  and  also  an  appeal  of  one  of  the  cases  before  the  U.S.  Court 
of  Customs  and  Patent  Appeals  which  ruled  in  my  client's  favor. 


30 


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3.  What  percentage  of  your  litigation  was: 

(a)  civil; 

(b)  criminal 

Approximately  95%  of  my  litigation  experience  has  been  in  civil  cases. 
I  did  handle  some  criminal  cases  in  the  Federal  Court  as  a  court  appointed 
attorney  and  approximately  seven  or  eight  habeas  corpus  petitions,  also  in 
the  Federal  Court  as  a  court  appointed  attorney.  So,  overwhelmingly  it  was 
a  practice  in  civil  litigation. 

4.  State  the  number  of  cases  in  courts  of  record  you  tried  to 
verdict  or  judgment  (rather  than  settled),  indicating  whether 
you  were  sole  counsel,  chief  counsel,  or  associate  counsel. 

Approximately  25,  mainly  as  sole  counsel. 

5.  What  percentage  of  these  trials  was: 

(a)  jury; 

(b)  non-jury 

All  were  non-jury  except  two  criminal  cases. 

18.  Litigation:  Describe  the  ten  most  significant  litigated  matters  which  you 
personally  handled.  Give  the  citations,  if  the  cases  were  reported,  and  the 
docket  number  and  date  if  unreported.  Give  a  capsule  summary  of  the 
substance  of  each  case.  Identify  the  party  or  parties  whom  you  represented; 
describe  in  detail  the  nature  of  your  participation  in  the  litigation  and  the  final 
disposition  of  the  case.  Also  state  as  to  each  case: 

(a)  the  date  of  representation 

(b)  the  name  of  the  court  and  the  name  of  the  judge  or  judges 
before  whom  the  case  was  litigated;  and 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of  co- 
counsel  and  of  principal  counsel  for  each  of  the  other  parties. 

A.        M.  Mereado  a  Hilos  v.  Junta  Azucarera.  95  D.P.R.  852  (1 968)  - 

The  Sugar  Producers  Association  of  Puerto  Rico  (the  "Association"),  Mario 
Mereado  e  Hijos,  and  the  Land  Authority,  operators  of  sugar  mills,  challenged  a 


31 


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resolution  of  the  Puerto  Rico  Sugar  Board  (the  "Sugar  Board")  ordering  them  to  pay 
for  transporting  and  hauling  cane  without  any  limitation  whatsoever  regardless  of 
the  distance  travelled,  eliminating  the  one-dollar  maximum  amount  which  had 
prevailed  by  law  until  then.  This  resolution  was  enacted  in  accordance  with  Act 
No.  55  of  June  19,  1962,  amended  subdivision  (e)  of  §6  of  the  Sugar  Act, 
eliminating  the  one-dollar  maximum  amount  which  the  sugar  mill  should  pay  to  the 
colonos  as  compensation  for  the  hauling  of  their  cane. 

After  several  preliminary  incidents,  the  Association  filed  a  petition  with  the 
Sugar  Board  to  fix  the  maximum  amount  of  one  dollar  for  the  compensation  to  be 
paid  to  growers  for  transporting  and  hauling  cane.  The  Association  argued  that  the 
application  of  said  Act  to  the  1963  grinding  season  resulted  in  an  increase  in 
compensation  only  to  those  colonos  who  transported  their  cane  through  a  distance 
of  more  than  17  kilometers.  The  increase,  therefore,  was  not  uniform  in  its 
applicability,  neither  was  consistent  with  the  Sugar  Act  of  Puerto  Rico  of  1951. 
Therefore,  §6,  without  providing  for  a  minimum-maximum  compensation  for 
transporting  and  hauling  cane,  is  constitutionally  inapplicable.  The  Sugar  Board 
denied  the  petition. 

The  Supreme  Court,  after  oral  arguments  and  briefs,  concluded  that  the 
compensation  had  been  established  by  law  itself  and,  hence,  it  could  only  be 
altered  by  legislative  affirmative  action.  Having  no  legal  basis,  the  Sugar  Board's 
Resolution  was  set  aside  and  left  without  effect.  Subsequently,  a  legislative  action 
was  taken  to  promulgate  an  Act  directing  the  Sugar  Board  to  make  a  survey  of  the 
costs  of  hauling  and  delivery  of  cane. 

The  case  is  one  of  the  few  where  the  Supreme  Court  of  Puerto  Rico  has  held 
a  regulation  unconstitutional. 

The  process  lasted  from  1 964  to  1 968.  I  represented  the  Association  before 
the  Sugar  Board  and  in  the  appeal  to  the  Supreme  Court,  including  the  brief  and  the 
oral  argumentation.  Justice  Blanco  Lugo  wrote  the  opinion. 

Opposing  counsel  -  Juan  Nevdrez  Santiago  (Deceased),  Adaljisa  Dfaz  de 
Coliazo  (on  appeal)  -  Telephone  Number:  (809)  767-0263  -  (809)  789-3981 

B.        Merced  v.  Jefe  de  Penitenclarfa.  88  D.P.R.  482  (1963) 

This  case  reached  the  Supreme  Court  on  appeal  from  the  Superior  Court, 
where  an  indigent  minor  defendant  was  denied  his  petition  for  habeas  corpus.  The 
Supreme  Court  affirmed. 


32 


-10- 


When  petitioner  was  sixteen  (16)  years,  he  was  sentenced  by  the  Minor's 
Guardianship  Court  for  committing  burglary.  The  judgment  provided  that  said  minor 
would  remain  in  the  custody  of  his  parents  on  condition  that  if  he  violated  the 
terms  and  conditions  thereof,  he  would  be  committed  to  the  Industrial  School  of 
Mayaguez. 

At  the  age  of  twenty  (20)  years,  petitioner  violated  the  P.  R  Drug  Act  and 
was  tried  before  the  Superior  Court.  He  was  sentenced. 

In  1961  defendant  filed  a  petition  for  habeas  corpus  before  the  Superior 
Court,  alleging  that  the  Judgment  had  been  rendered  without  jurisdiction  because, 
since  defendant  was  under  the  jurisdiction  of  the  Minor's  Guardianship  Court,  that 
court  had  not  waived  jurisdiction. 

The  court  denied  the  petition. 

Three  major  errors  were  noted  by  appellant.  The  first  one  being  that  the 
Superior  Court  erred  in  holding  that  under  the  provisions  of  Act  No.  97  of  1955 
(the  "Act"),  petitioner  could  be  prosecuted  as  an  adult  without  the  Minors'  Court 
waiving  its  authority.  The  second  issue  raised  was  that  the  Court  also  erred  in 
failing  to  designate  an  attorney  for  the  hearing  of  the  petition  for  habeas  corpus. 
Finally,  the  third  error  set  forth  by  appellant  was  against  the  e_x  post  facto 
application  of  an  act. 

The  Supreme  Court  held  that  the  Act,  in  so  far  as  it  permits  the  Minor's 
Court,  to  waive  its  authority  over  a  minor  over  18  and  under  21,  in  order  for  him 
to  be  prosecuted  as  an  adult  for  offenses  committed  during  the  effectiveness  of  the 
Act,  is  not  £&  post  facto  when  applied  to  such  minor,  since  the  Act  was  in  effect 
when  the  violations  of  law  were  committed.  In  connection  with  the  second  error 
raised  by  appellant,  the  Supreme  Court  reaffirmed  the  constitutional  right  of 
counsel  for  indigent  defendant,  however,  it  found  no  practical  purpose  in  reversing 
the  judgment  and  remanding  the  case  for  further  hearing  of  the  same  evidence 
before  the  Superior  Court,  at  which  petitioner  shall  be  assisted  by  counsel. 

Minor  Victor  M.  Merced,  was  the  petitioner  and  appellant.  I  was  appointed 
by  the  Supreme  Court  to  aid  the  defendant  in  the  perfection  of  his  appeal  in  1961 . 
The  Superior  Court  denied  defendant's  petition  for  habeas  corpus.  Supreme  Court 
affirmed.  Mr.  Justice  Perez  Pimentel  delivered  the  opinion  of  the  Court. 

Opposing  Counsel  -  Peter  Ortiz,  Esq.  -  Telephone  Number:  (809)  725-1681 

or  (809)  722-2199 


33 


-li- 


C.        MgrtineZ  v.  Commonwealth  Oil  Refining  Co..  Inc..  92  D.P.R.  693 
(1965). 

Three-hundred  and  eighty-two  (382)  workers  of  defendant  Commonwealth 
Oil  Refining  Company  filed  suit  in  the  Superior  Court,  claiming  double  pay  for  work 
during  the  lunch  hour. 

The  trial  court  dismissed  the  complaint  without  going  to  its  merits  since  it 
understood  that  it  lacked  jurisdiction  over  the  matter.  Defendants  then  filed  with 
the  Supreme  Court  for  a  writ  of  review. 

The  Supreme  Court  issued  the  writ  and  reversed  the  inferior  court's  decision 
and  ordered  the  claim  to  be  litigated  on  its  merits.  Fundamentally,  the  Supreme 
Court,  indicated  that  the  Superior  Court  erred  by  incorrectly  applying  a  prior 
Supreme  Court  ruling.  The  Supreme  Court  indicated  that  its  prior  ruling  was  not 
applicable  to  a  claim  arising  under  a  labor  statute,  which  provides  for  compensation 
at  double  rate  for  work  performed  during  mealtime.  The  prior  ruling  determined 
that  when  by  a  collective  agreement  there  is  a  mechanism  to  deal  with  grievances 
and  provides  for  compulsory  arbitration  of  disputes,  the  claim  arising  pursuant  to 
said  agreements  shall  not  be  considered  directly  in  the  courts  without  utilizing  said 
mechanism. 

In  this  particular  case,  the  right  of  workers  arose  from  a  labor  statute  and  not 
from  a  collective  bargaining  agreement.  However,  the  court  evaluated  the  long 
period  of  time  (three  and  a  half  years)  the  case  had  been  in  litigation  and,  in 
accordance  with  the  spirit  of  the  law  and  the  legislative  intent,  it  held  that  the  trial 
court  could  keep  its  jurisdiction.  It  indicated  that  the  trial  court  could  not  construe 
any  part  of  the  agreement  to  lead  to  a  different  result.  Furthermore,  it  indicated 
that,  if  it  wished  to  interpret  the  agreement,  the  trial  court  had  the  power  to 
appoint  a  commissioner  to  receive  the  evidence  on  that  aspect. 

Trial  lasted  from  1962  to  1965.  Mr.  Justice  Santana  Becerra  delivered  the 
Court's  opinion.  I  was  co-counsel  for  the  Commonwealth  Oil  Refining  Co.,  Inc., 
along  with  Victor  M.  Pons,  Jr.,  later  Chief  Justice  of  Puerto  Rico  -  (809)  723- 
2100),  and  Juan  R.  Torruella  del  Valle  (now  a  Federal  Appellate  Judge  -  (809)  729- 
8010).   I  prepared  the  brief,  which  was  also  reviewed  by  co-counsel. 

Opposing  counsel  •   Jos6  A.  Suro,  Esq.  (retired)  and  Miguel  J.  Rios  Lugo, 
Esq.,  telephone  number  unavailable. 


D.        Serralta  v.  Martinez  Rivera.  97  D.P.R.  466  (1 969) 


34 


-12- 


Plaintiff  filed  a  complaint  for  damages  against  appellant  Cervecerfa  Corona, 
Inc.  ("Cervecerfa  Corona")  and  its  employee,  alleging  that  while  the  defendant  was 
negligently  driving  Cervecerfa  Corona's  truck,  it  crashed  into  plaintiff's  car,  causing 
damages  to  the  driver. 

Defendant  contested  plaintiff's  allegations  by  arguing  that  the  accident  was 
caused  by  force  majeure.  Cervecerfa  Corona  admitted  the  occurrence  of  the 
accident,  but  argued  that  the  accident  was  of  a  fortuitous  nature.  However,  it  then 
filed  a  third-party  complaint  against  the  seller  of  the  truck's  tires,  P.  R.  Tire  Inc., 
alleging  that  defective  tires  had  caused  the  accident.  The  third-party  defendant 
requested  the  dismissal  of  the  third-party  claim  on  account  of  being  untenable  as 
a  procedural  question  and  because  the  cause  of  action  was  barred. 

The  Superior  Court,  dismissed  the  third  party  complaint.  Cervecerfa  Corona 
then  appealed  to  the  Supreme  Court  which  reversed  the  inferior  court's  decision 
and  ordered  the  complaint  be  answered. 

Fundamentally,  the  Supreme  Court  held  that  the  allegations  involved  the 
typical  situation  of  the  "distribution"  of  monetary  liability  between  two  or  more 
joint  tort-feasors,  in  which,  although  under  the  doctrine  which  governs  according 
to  our  precedents  it  is  a  solidary  liability  with  the  prejudiced  party,  the  court  has 
previously  permitted  the  existence  between  the  joint  tort-feasors  of  the 
"distribution"  of  monetary  liability  in  adopting  said  view  of  "distribution". 

In  regards  to  the  second  defense,  concerning  the  barring  of  the  cause  of 
action,  the  Supreme  Court  held  that  the  inferior  court  erred  in  its  conclusion  that 
the  action  had  tolled.  In  doing  so,  the  trial  court  applied  the  limitation  period  of  six 
(6)  months  provided  in  §1379  of  the  Civil  Code.  But  the  allegations  were  made  in 
motion  for  dismissal  and  it  is  necessary  to  rely  on  the  allegations.  The  third-party 
plaintiff  charged  the  third-party  defendants  with  Aquilian  fault,  not  breach  of 
contract.  Hence,  existing  in  that  sense  cause  for  action  against  the  third-party 
defendants,  the  rules  about  "distribution  of  monetary  liability  between  joint  tort- 
feasors are  equally  applicable,  being  this  a  monetary  one  which  could  be 
adjudicated  in  a  third-party  complaint. 

This  was  a  significant  case  in  that  the  Court  expressed  and  indicated  the 
elements  which  need  to  be  present  in  order  for  original  defendant  to  be  able  to 
successfully  bring  a  third-party  defendant  in  an  action  for  damages  under  Puerto 
Rican  statutes. 

I  was  counsel  for  Puerto  Rico  Tire,  Inc.,  third-party  defendant  before  the 
Superior  Court  and  prepared  the  brief  for  appellant  in  the  Supreme  Court. 


35 


-13- 


Trial  period  lasted  from  1967  to  1969  and  Mr.  Justice  Santana  Becerra 
delivered  the  Court's  opinion.  Opposing  counsel  •  Hartzel,  Fernandez,  Novas  & 
Ydrach  (law  firm  now  dissolved)  and  Aido  Segurola,  now  retired,  telephone  number 
(809)  754-3000. 


E.        Rodriguez  v.  Tribunal  Superior.  102  D.P.R.   290(1974) 

The  Supreme  Court  of  Puerto  Rico  issued  CERTIORARI  in  order  to  review  a 
Superior  Court  Judgment  which  left  without  effect  a  Motion  for  Judgment  Relief 
issued  in  default.  The  Superior  Court  had  dismissed  the  Motion  for  Judgment 
Relief  because  the  statute  of  limitations  had  tolled. 

Petitioner  argued  that  he  had  not  appeared  in  court  on  time  following  his 
attorney's  advice,  who  was  at  the  time,  handling  a  petition  for  voluntary 
bankruptcy  before  the  U.  S.  Federal  District  Court.  Subsequently,  petitioner's 
attorney  died  before  filing  a  motion  to  paralyze  the  procedures.  Notwithstanding 
these  facts,  the  Supreme  Court  of  Puerto  Rico  confirmed  the  Superior  Court's 
resolution.  In  doing  so,  the  Supreme  Court  determined  that  the  limitation  term  of 
six  (6)  months  specified  in  Rule  49.2  of  the  Puerto  Rico  Rules  of  Civil  Procedure  is 
jurisdictional,  and  that  appellant  could  not  raise  substantive  issues  of  law  which 
should  or  had  to  be  raised  before  judgment  as  affirmative  defenses  or  after 
judgment  in  appeal. 

This  was  a  case  which  reaffirmed  the  precedents  to  be  followed  in  order  for 
a  Court  to  be  able  to  adjudicate  a  Motion  for  Judgment  Relief  under  the  Rules  of 
Civil  Procedure. 

This  case  was  decided  PER  CURIAM,  on  May  29,1974.  Eduardo  Negr6n 
Rodrtguez,  Esq.  (now  retired,  telephone  number  (809)  765-8579)  and  myself  were 
co-counsel  for  Mr.  Rafael  Rodriguez,  petitioner. 

I  prepared  the  brief  before  the  Supreme  Court  which  was  reviewed  by  co- 
counsel  Rodriguez.  Opposing  Counsel  was  Antonio  Bird,  Sr.  (now  retired), 
telephone  number:  (809)  721-0190 


F.         Productos  Llbbv's  International.lnc.  v.  Luce  &  Co..  286  F.  Supp.  301 
(1968) 

Action  by  plaintiff,  Productos  Libby's  International,  Inc.  ("Productos")  an 
Illinois  Corporation,  was  brought  against  a  Puerto  Rico  partnership,  Luce  &  Co. 


36 


-14- 


("Luce").  Defendant  moved  to  dismiss  arguing  that  the  federal  court  had  no 
jurisdiction  under  48  U.S.C.  5  §863,  864.  The  District  Court  held  that  "domicile" 
within  jurisdiction  provision  of  Puerto  Rico  -  Federal  Relations  Act  is  equivalent  to, 
and  synonymous  with  the  state  of  incorporation.  Illinois  corporation,  which  had 
principal  place  of  business  in  Puerto  Rico,  was  not  domiciled  in  Puerto  Rico,  and 
thus  federal  court  had  jurisdiction. 

In  furtherance,  the  District  Court  held  that  for  jurisdictional  purposes  under 
the  Puerto  Rico-Federal  Relations  Act,  a  corporation  is  domiciled  in  the  jurisdiction 
were  it  was  incorporated  and  not  were  it  has  its  principal  place  of  business. 

I  was  trial  counsel  for  Productos  Libby's  International,  Inc.  and  prepared  the 
brief.  Judge  Fernandez  Badillo  decided  the  case  in  1968.  It  was  a  leading  case  at 
the  time.  Opposing  counsel  •  Arturo  Estrella  (now  deceased). 


G.        Haves  Industries.  Inc.  v.  Caribbean  Sales  Associates.  Inc..  387  F.2d 
498   (1968) 

This  action  arose  under  an  alleged  termination  of  contract  without  cause. 
Caribbean  Sales  Associates,  Inc.,  a  Puerto  Rican  corporation,  had  a  distributorship 
contract  with  defendant  Hayes  Industries,  Inc.,  a  Michigan  manufacturer.  In  1966 
defendant  canceled  the  contract.  Plaintiff  believed  this  cancellation  to  be  a 
violation  of  rights  conferred  upon  it  by  a  Puerto  Rican  Dealers  Contract  Act. 

Although  this  case  raised  several  procedural  issues  regarding  the  Federal 
Rules  of  Civil  Procedure,  the  most  important  issue  for  the  development  of  case  law 
in  Puerto  Rico  was  with  regard  to  the  new  Puerto  Rico  Dealers  Act.  Regarding  this 
issue,  the  Circuit  Court  determined  that,  although  the  District  Court  was  of  the 
view  that  the  Puerto  Rico  statute  governed,  the  contract  prevailed.  The  Court  of 
Appeals  held  that  Michigan  law  is  to  govern  since  it  was  stipulated  that  way  in  the 
distributorship  agreement. 

This  was  the  first  time  the  Court  of  Appeals  ruled  on  an  action  arising  under 
the  Dealers  Act,  which  had  been  enacted  just  two  years  before. 

I  represented  plaintiff  in  trial  and  prepared  the  brief  on  appeal  for  Appellee. 
Judge  Aldrich,  McEntee  and  Coffin,  Circuit  Judges,  gave  the  opinion  on  January 
10,  1968.  Opposing  Counsel  -  Gonzalo  Sifre,  Esq.  (now  retired).  Tel.  No.:  (809) 
250-5671 


37 


-15- 


H.        foible  v.  Puerto  Rico  Industrial  Development  Company  ("PRIDCO"). 
392  F.2d  424  (1968). 

Action  was  brought  by  PRIDCO  ("Pledgee")  against  Raible  ("Pledgor")  in 
connection  with  60,000  shares  of  pledged  corporate  stock.  The  suit  was, 
eventually  removed  to  federal  district  court  on  ground  of  diversity  of  citizenship. 
The  District  Court  entered  judgment  from  which  defendant  pledgor  appealed.  The 
primary  issue  in  this  suit  was  to  determine  the  consequences  of  a  Pledgee's  voting 
pledged  stock  in  favor  of  a  merger  without  notice  to,  or  knowledge  of  the  pledgor. 
The  Court  of  Appeals,  held  that  under  agreement  between  Pledgor  of  corporate 
stock  and  Pledgee,  pursuant  to  which  60,000  shares  of  preferred  stock  were  to  be 
held  by  Pledgee  as  collateral  security  for  fulfillment  of  Pledgor's  obligation  as 
guarantor  of  lease  from  Pledgee  to  corporation,  Pledgor  was  entitled  to  credit  of 
$10  per  share  against  his  obligation,  where  Pledgee,  without  notice  to  or 
knowledge  of  Pledgor,  exercised  rights  of  ownership  by  voting  stock  in  favor  of 
merger  of  corporation,  which  merger  resulted  in  change  in  nature  of  pledged 
property  and  in  exchange  of  Pledgor's  $10  preferred  shares  for  common  stock  with 
par  value  of  one  cent. 

After  carefully  examination  by  the  agreement  entered  by  and  between 
Pledgee  and  Pledgor,  as  well  as  the  applicable  dispositions  of  the  Puerto  Rican 
corporate  law,  the  Court  of  Appeals  indicated  that  since  the  agreement  made  no 
separate  provisions  for  voting  rights,  as  between  the  parties  themselves,  even 
though  it  might  have  done  so,  it  would  be  reasonable  to  assume  that  Pledgor  was 
content,  that  as  a  normal  matter.  Pledgee  should  possess  the  voting  right  which, 
on  the  books,  it  appeared  to  have.  However,  the  Court  of  Appeals  did  held  that 
even  if  we  accept  the  intention  that  under  the  agreement  ordinary  voting  rights 
were  under  the  Pledgee,  there  are  some  votes  which  cannot  be  justified  by  this 
authority.  The  Court  thought  this  was  such  a  vote.  Therefore  the  Court  of  Appeals 
found  it  hard  to  disagree  with  Pledgor's  contention  that  Pledgee's  action 
constituted  an  "arbitrary  confiscation"  of  his  stock. 

The  Court  of  Appeals  vacated  District  Court's  judgment  in  favor  of  Pledgee. 

Another  issue  in  the  present  case  dealt  with  a  third  party  claim  presented  by 
Raible  against  Standard  Steel  and  Wire  Company,  and  hence,  apparently  against 
Standard  Steel  and  Tube  Company,  (the  "Surviving  Company")  of  the 
aforementioned  merger  transaction,  asserting  that  he  is  entitled  to  reimbursement 
for  having  to  respond  for  his  $48,000  "guaranty"  of  the  rental  obligation.  The 
Court  of  Appeals  held  that,  inasmuch  as  Raible  undertook  the  obligation  to  pay,  as 
guarantor,  for  any  event  of  default  incurred  by  the  disappeared  company,  it  not 
only  was  Raible's  obligation  independent,  but  to  permit  him  to  claim  over  against 


38 


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the  Surviving  Company  would  be  contrary  to  the  whole  tenor  of  the  agreement 
relieving  the  surviving  company  of  liability  under  such  circumstances.  The  Court 
of  Appeals  found  Riable's  appeal  so  frivolous  in  this  respect  that  the  surviving 
company  was  adjudicated  with  double  costs. 

This  case  was  decided  by  Aldrich,  Chief  Judge,  McEntee  and  Coffin,  Circuit 
Judges,  on  April  15,  1968.  I  represented  third  party  defendant  during  trial, 
prepared  the  brief  on  appeal  and  appeared  for  oral  argument  before  the  Court. 
Opposing  counsel  -  A.  Torres  Braschi  (now  deceased) 

I.  United  States  of  America  v.  Miguel  Bermudez  Torres.  No.  Cr.  26-13 

(1963) 

This  was  a  criminal  action  in  the  federal  court.  The  defendant  was  accused 
of  receiving  stolen  goods  moving  in  interstate  commerce  knowing  them  to  have 
been  stolen,  in  violation  of  Title  18  USC  §659.  The  defendant  was  found  not 
guilty  by  the  jury  since  defendant  was  able  to  prove  that  the  property  was 
unlawfully  seized  and  taken  from  him  against  his  will  and  without  a  search  warrant 
by  police  officers. 

The  defendant  was  acquitted  and  discharged.  I  represented  the  defendant 
during  his  trial  by  jury.  This  was  my  first  criminal  case  before  a  jury. 

The  case  was  decided  by  U.  S.  District  Judge,  Clemente  Ruiz-Nazario  on 
September  4,1963.    I  was  counsel  for  Mr.  Miguel  Bermudez  Torres,  defendant. 
Unfortunately,  this  judgment  was  not  published.  Opposing  counsel  was  Benicio 
Sanchez  Rivera,  Esq.,  then  Assistant  U.  S.  Attorney,  tel.  no.  (809)  729-6771. 
(809)   729-6771 


J.         Antonio  Roio  Sucrs.  S.  en  C.  v.  The  United  States.    420  F.2d  750 
(1969) 

This  action  was  an  appeal  from  the  decision  and  judgment  of  the  United 
States  Customs  Court,  Second  Division,  overruling  Appellant's  protest  against  the 
Collector's  classification  of  a  sugar  crane  as  an  article  having  as  an  essential 
feature  an  electrical  element  or  device  under  Paragraph  353  of  the  Tariff  Act  of 
1930,  and  assessed  with  duty. 

The  Customs  Court  held  that  the  crane  was  properly  subject  to  classification. 


39 


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The  Court  of  Customs  and  Patent  Appeals  held  that  the  sugar  crane  was 
primarily  agricultural  equipment  and  set  aside  the  classification. 

The  significance  of  this  case  was  the  favorable  economic  impact  it  had  on 
the  large  sugar  industry  of  Puerto  Rico. 

As  lead  counsel  for  Antonio  Roig  Sucrs.  S.  en  C,  I  tried  the  case  before  the 
U.  S.  Customs  Court,  Second  Division;  prepared  brief  on  appeal  and  appeared  for 
oral  argument  before  the  Court  of  Customs  and  Patent  Appeals.  This  case  was 
decided  in  1 969.  Opposing  counsel  was  Andrew  P.  Vance,  Chief  Customs  Section, 
Department  of  Justice. 

Due  to  the  fact  that  so  much  time  has  elapsed  since  I  tried  these  cases, 
some  of  the  participating  attorneys  are  unavailable  for  reference.  I  therefore, 
enclose  a  list  of  prominent  attorneys  who  are  familiar  with  my  litigation  and 
professional  experience. 


19.  Leoal  Activities:  Describe  the  most  significant  legal  activities  you  have 
pursued, including  significant  litigation  which  did  not  progress  to  trial  or  legal 
mattes  that  did  not  involve  litigation.  Describe  the  nature  of  your 
participation  in  this  question,  please  omit  any  information  protected  by  the 
attorney-client  privilege  (unless  the  privilege  has  been  waived). 

(a)  During  the  last  ten  years,  I  have  been  active  with  my  firm  in  the  areas 
of  taxes,  banking  and  general  business  law.  In  addition  to  work  done 
for  individual  clients,  I  have  advised  the  P.  R.  Bankers  Association  and 
the  P.  R.  Manufacturers  Association  on  a  number  of  important  issues. 
I  have  also  participated  in  the  management  of  the  firm  as  a  member 
of  the  Management  Committee  and  chairman  of  the  Corporate 
Section. 

Besides  my  professional  activities  at  the  firm  and  the  pro  bono  work 
mentioned  in  Section  III,  during  these  years  I  participated  in  several 
important  legal  reforms  which  have  had  an  impact  on  Puerto  Rico  as 
a  whole. 

For  example,  in  1985-1986  I  participated  in  developing  the  position 
of  Puerto  Rico  with  regards  to  the  proposed  changes  to  Section  936 
of  the  U.  S,  Internal  Revenue  Code.  Puerto  Rico  suggested  to 
Congress  that  the  funds  deposited  by  the  so-called  936  companies  in 
the  Puerto  Rico  banking  system,  be  utilized  to  assist  other  Caribbean 


40 


-18- 


nations  participating  in  the  Caribbean  Basin  Initiative.  The  Island's 
proposal  was  adopted  by  Congress  and  as  a  result,  over  $1  billion  of 
936  funds  have  been  invested  in  the  Caribbean  with  over  20,000  jobs 
created. 

Another  instance  was  in  1986-1989.  I  was  a  member  of  the 
Governor's  Economic  Advisory  Council  where  I  participated  actively 
with  the  Secretary  of  the  Treasury  in  designing  and  enacting  the  Tax 
Reform  Act  of  1987.  This  important  legislation  was  similar  in  scope 
to  that  adopted  in  the  U.  S.  in  1986,  but  also  included  excise  taxes. 
As  former  Secretary  of  the  Treasury  and  as  a  tax  lawyer,  I  contributed 
to  the  process  and  the  final  approval  of  this  important  fiscal  reform. 

(b)  Banking  -  In  1982,  our  leading  federal  savings  and  loan  association 
was  in  severe  financial  difficulties.  Because  of  my  experience  as  bank 
regulator  while  Secretary  of  the  Treasury  of  Puerto  Rico,  and  as  a  well 
known  banking  lawyer,  I  was  asked  by  the  Federal  Home  Loan  Bank 
Board  to  assume  the  leadership  of  the  Board  of  Directors  and  with 
their  assistance  rehabilitate  the  institution  as  a  so-called  "Phoenix". 
My  knowledge  of  banking  law  and  taxes  helped  me  in  that  important 
task  and  by  1984  the  bank  had  returned  to  financial  health.  It 
continues  to  be  our  leading  savings  bank  to  this  day. 


(c)  Code  of  Commerce  -  For  three  years  I  have  been  working  on  a  new 
Code  of  Commercial  Law  for  Puerto  Rico  as  member  of  the  Puerto 
Rico  Academy  of  Jurisprudence.  I  chair  the  sub-committee  drafting 
the  new  Code  to  replace  the  1883  Spanish  Code  still  in  force  in 
Puerto  Rico.  The  new  Code  will  include  provisions  governing  Puerto 
Rican  maritime  law.   It  should  be  completed  in  1995. 

(d)  Section  936.  In  1974-1975  the  House  Ways  and  Means  Committee 
proposed  limiting  tax  free  liquidations  under  Section  332  of  the  U.S. 
Internal  Revenue  Code.  This  proposal  was  contained  in  the  tax  reform 
initiative  of  1974.  Puerto  Rico's  industrial  development  program 
depended  heavily  on  the  ability  of  U.  S.  manufacturing  subsidiaries 
doing  business  on  the  Island  to  liquidate  tax  free  into  their  U.  S. 
parent  corporation  in  order  to  repatriate  the  earnings  which  they  had 
accumulated.  At  the  time,  Puerto  Rico  was  undergoing  a  severe 
recession  because  of  the  1973-74  oil  crisis  and  the  proposed 
amendment  to  Section  332  would  have  severely  affected  its  economy 
and  ability  to  attract  new  investment  with  unemployment  hovering  at 


41 


-19- 


18%.  As  Secretary  of  the  Treasury  of  Puerto  Rico  I  travelled  to 
Washington  on  very  short  notice  and  appeared  before  the  House  Ways 
and  Means  Committee  chaired  by  representative  Wilbur  Mills.  I 
explained  to  the  Committee  the  comparative  poverty  of  Puerto  Rico 
compared  to  the  mainland,  and  the  severe  dislocation  that  would 
occur  if  its  industrial  development  program  was  affected.  I  spoke 
from  personal  notes  since  I  did  not  have  time  to  prepare  a  formal 
statement.  Therefore,  I  do  not  have  a  copy  of  my  testimony. 

The  Committee  expressed  that  h  had  no  intention  to  harm  Puerto 
Rico,  and  asked  the  Executive  Director  of  the  Joint  Committee  on 
Internal  Revenue  Taxation,  Mr.  Lawrence  Woodworth,  to  meet  with 
me  and  other  officials  of  the  Government  of  Puerto  Rico  to  develop  a 
mutually  satisfactory  solution.  Thereafter,  I  headed  the  team  that 
negotiated  with  the  Congress  and  the  U.  S.  Treasury  in  adopting 
Section  936  of  the  Code.  In  July,  1975,  I  again  appeared  before  the 
Ways  and  Means  Committee  together  with  then  Resident 
Commissioner  Jaime  Benitez  and  the  Economic  Development 
Administrator,  Hon.  Teodoro  Moscoso,  to  present  the  position  of  the 
Commonwealth  of  Puerto  Rico.  A  copy  of  my  testimony  and 
statement  is  included. 

Section  936  was  specifically  designed  to  attract  U.  S.  investment  to 
the  Island  in  order  to  create  more  employment  and  decrease  its 
dependency  on  welfare  funds.  My  negotiations  with  Congress  lasted 
for  approximately  1 8  months  and  included  important  meetings  with 
then  Senator  Russell  Long,  Chairman  of  the  Senate  Finance 
Committee.  Section  936  was  finally  approved  in  1976  and  it  became 
an  important  economic  development  tool  in  order  for  Puerto  Rico  to 
come  out  of  its  severe  recession. 

(e)  Anoel  Batista  -  In  1964  I  was  appointed  by  the  Federal  Court  to 
represent  state  prisoner  Angel  Batista  in  his  petition  for  habeas 
Corpus-  Mr.  Batista  was  imprisoned  for  life  after  being  found  guilty  of 
murder  in  the  Superior  Court  of  Puerto  Rico.  I  visited  Mr.  Batista  in 
the  State  Penitentiary  and  became  convinced  of  his  innocence.  His 
conviction  had  been  due  primarily  to  the  testimony  of  a  woman  with 
whom  he  had  been  emotionally  involved  at  one  time.  After  lengthy 
hearings  and  testimony,  the  Commonwealth  Department  of  Justice 
was  able  to  sustain  that  Mr.  Batista  had  not  exhausted  all  of  his  state 
remedies,  and  the  Federal  Court  refused  to  set  aside  his  conviction. 


42 


-20- 


Sixteen  years  later,  I  was  back  working  at  the  law  firm  and,  to  my 
surprise,  Mr.  Batista  came  to  see  me.  He  had  been  set  free  because 
the  woman  who  had  been  the  key  witness  against  him  in  his  murder 
trial,  had  become  very  religious  and  confessed  her  perjury.  Mr. 
Batista  had  served  all  those  years  in  the  penitentiary  even  though  he 
was  innocent.  I  was  shaken  by  the  experience  and  by  Mr.  Batista's 
continued  confidence  in  me.  He  wanted  his  record  to  be  cleared.  I 
represented  Mr.  Batista  in  this  last  effort  but  bureaucratic  procedures 
and  the  lack  of  a  specific  statutory  remedy  did  not  enable  him  to  have 
his  record  completely  cleared.  However,  Mr.  Batista  was  a  free  man 
and  I  shall  always  remember  the  moving  experience. 

W  P.R.  Tolloate  Tax  -  In  1976,  my  last  year  as  Secretary  of  the 
Treasury,  I  proposed  the  enactment  of  a  withholding  tax  of  10%  on 
all  of  the  corporate  profits  accumulated  by  the  then  so  called  931 
corporations  doing  business  in  Puerto  Rico  under  the  industrial 
development  program.  These  corporations,  several  hundred  in 
number,  did  business  in  Puerto  Rico  under  local  tax  exemption 
statutes  and  repatriated  their  profits  without  any  local  tax  at  the  end 
of  their  exemption  period  under  the  provisions  of  Section  332  of  the 
U.  S.  Internal  Revenue  Code. 

With  the  enactment  of  Section  936,  to  become  effective  in  October 
of  that  year,  all  of  the  accumulated  profits  (several  billion  dollars),  of 
the  companies  could  have  been  declared  as  dividends  completely  tax 
free  and  not  be  invested  in  Puerto  Rico,  which  desperately  needed 
capital.  My  withholding  tax  proposal,  also  known  as  the  tollgate  tax, 
caused  a  furor  and  strong  opposition  in  the  business  and  corporate 
community  which  was  counting  on  the  repatriation  of  the 
accumulated  funds  tax  free.  They  argued  that  their  local  tax 
exemption  grants  gave  them  the  right  to  do  so  and  mounted  an 
extensive  lobbying  campaign  in  the  Legislature  of  Puerto  Rico  to 
oppose  the  approval  of  the  tollgate  tax. 

This  was  an  unforgettable  experience  for  me,  since  I  was  basically  the 
only  proponent  of  the  tollgate  tax  and  the  interested  corporations  had 
obtained  the  support  of  other  members  of  the  cabinet  and  many 
legislators.  In  countless  meetings  and  appearances  before  the 
Legislature  I  was  able  to  slowly  bring  them  around  to  support  the 
approval  of  the  tollgate  tax.  With  all  of  the  business  community 
aligned  against  the  tax,  it  was  finally  approved  in  the  last  day  of  the 
legislative  session  of  1 976  by  one  or  two  votes  in  each  chamber,  with 


43 


-21- 


a  last  minute  attempt  to  derail  it  minutes  before  the  midnight  deadline. 

This  was  one  of  the  highlights  of  my  public  service  as  Secretary  of  the 
Treasury  inasmuch  as  the  tollgate  tax  served  as  a  retainer  to  keep  all 
of  those  funds  invested  in  the  economy  of  Puerto  Rico,  to  be  later 
repatriated  through  the  payment  of  the  10%  withholding  tax.  The  tax 
contributes  presently  over  $300  million  to  the  Treasury  of  Puerto  Rico. 


44 


-22- 


II.  FINANCIAL  DATA  AND  CONFLICT  OF  INTEREST 


1.  List  sources,  amounts  and  dates  of  all  anticipated  receipts  from  deferred 
income  arrangements,  stock,  options,  uncompleted  contracts  and  other 
future  benefits  which  you  expect  to  derive  from  previous  business 
relationships,  professional  services,  firm  memberships,  former  employers, 
clients,  or  customers.  Please  describe  the  arrangement  you  have  made  to 
be  compensated  in  the  future  for  any  financial  or  business  interest. 

Fiddler,  Gonzalez  &  Rodriguez  -  My  partnership  interest  in  the  law  firm  is 
valued  at  approximately  $225,000.  Said  interest  will  be  paid  in  five  years 
in  monthly  installments  in  accordance  with  the  Partnership  Contract.  Upon 
retirement  from  the  firm,  I  would  be  entitled  to  receive  a  pension  from  a 
qualified  pension  plan,  all  in  accordance  with  federal  and  local  law.  The 
pension  will  be  paid  by  the  Pension  Trust  on  a  monthly  basis  throughout  my 
lifetime  with  a  lesser  pension  to  my  spouse  if  she  survives  me. 

Puerto  Rican  Cement  Company,  Inc.  -  As  a  director  of  this  company,  I  have 
a  deferred  income  arrangement  with  an  accumulated  amount  of 
approximately  $230,000.  Upon  my  resignation  as  a  director  such  amount 
will  be  transferred  to  a  bank  or  insurance  company  to  continue  deferral. 

After  my  departure  from  the  firm  and  resignation  as  a  director  of  Puerto 
Rican  Cement  Company  Inc.,  I  will  not  have  any  interest  in  either  of  these 
entities. 

2.  Explain  how  you  will  resolve  any  potential  conflict  of  interest.including  the 
procedure  you  will  follow  in  determining  these  areas  of  concern.  Identify  the 
categories  of  litigation  and  financial  arrangements  that  are  likely  to  present 
potential  conflicts-of-interest  during  your  initial  service  in  the  position  to 
which  you  have  been  nominated. 

I  believe  the  best  procedure  to  avoid  potential  conflict  of  interest  or  the 
appearance  thereof,  is  to  disqualify  oneself  from  any  case  or  matter  which 
may  present  such  a  situation.  As  a  general  rule,  I  would  disqualify  myself 
from  any  case  or  matter  involving  a  relative;  and  on  any  cases  of  my  former 
law  firm  for  a  period  of  years  in  excess  of  that  required  by  the  Canons  of 
Judicial  Ethics.   I  would  apply  the  same  rule  to  any  former  clients. 


45 


-23- 


3.  Do  you  have  any  plans,  commitments,  or  agreements  to  pursue  outside 
employment,  with  or  without  compensation,  during  your  service  with  the 
court?  If  so,  explain. 

No. 

4.  List  sources  and  amounts  of  all  income  received  during  the  calendar  year 
preceding  your  nomination  and  for  the  current  calendar  year.including  all 
salaries,  fees,  dividends,  interest,  gifts,  rents,  royalties,  patents,  honoraria, 
and  other  items  exceeding  $500  or  more  (If  you  prefer  to  do  so,  copies  of 
the  financial  disclosure  report,  required  by  the  Ethics  in  Government  Act  of 
1978,  may  be  substituted  here.) 

A  copy  of  my  Financial  Disclosure  Report  is  enclosed. 

5.  Please  complete  the  attached  financial  net  worth  statement  in  detail  (Add 
schedules  as  called  for). 

Attached  is  my  financial  statement  as  of  June  30,  1994.  Since  mid-year 
figures  for  1994  are  not  completely  available,  this  statement  adequately 
reflects  my  net  worth  give  or  take  5%. 

6.  Have  you  ever  held  a  position  or  played  a  role  in  a  political  campaign?  If  so, 
please  identify  the  particulars  of  the  campaign,  including  the  candidate,  dates 
of  the  campaign,  your  title  and  responsibilities. 

Yes.  In  1967  a  plebiscite  was  held  in  Puerto  Rico  to  determine  political 
status.  In  that  campaign  I  presided  over  the  organization  known  as  "Citizens 
for  Commonwealth  Status".  In  1968  I  was  active  in  Senator  Robert 
Kennedy's  campaign  until  his  untimely  death.  Thereafter,  I  joined  Senator 
Humphrey's  efforts.  In  1972,  I  headed  Senator  MacGovern's  campaign  in 
Puerto  Rico  and  was  a  delegate  to  the  Democratic  National  Convention  in 
Miami.  I  have  never  had  any  formal  participation  in  local  campaigns.  I  have 
been  a  friend  and  adviser  of  former  Governor  Rafael  Hernandez  Col6n.  In  that 
capacity,  I  have  been  close  to  him  throughout  his  twenty  years  of  public  life, 
including  campaign  periods. 


46 


-24- 


III.  GENERAL 


1 .  An  ethical  consideration  under  Canon  2  of  the  American  Bar  Association's 
Code  of  Professional  Responsibility  calls  for  "every  lawyer,  regardless  of 
professional  prominence  or  professional  workload,  to  find  some  time  to 
participate  in  serving  the  disadvantaged."  Describe  what  you  have  done  to 
fulfill  these  responsibilities, listing  specific  instances  and  the  amount  of  time 
devoted  to  each. 

In  my  practice  before  the  Federal  Court  from  1962  to  1972, 1  handled 
a  number  of  court  appointed  cases  defending  the  disadvantaged.  In 
1971,  I  chaired  the  Committee  to  design  and  establish  the  public 
defender  panel  for  the  Federal  Court  in  San  Juan.  Among  the  court 
appointed  cases  that  I  handled  before  the  Federal  Court,  were 
approximately  seven  or  eight  habeas  corpus  petitions  on  behalf  of 
inmates  at  the  State  Penitentiary. 

I  have  also  been  active  pro  bono  in  non-profit  institutions.  Some  examples 
are  the  following: 

Puerto  Rico  Legal  Aid  Society  -  In  1989  there  was  a  dispute  between  the 
management  of  the  society  and  the  lawyers  providing  services.  The 
Supreme  Court  of  Puerto  Rico  intervened  and  appointed  a  new  board  of 
Directors  to  study  the  situation,  arbitrate  the  dispute  and  assure  that  legal 
services  to  the  indigent  were  not  affected.  I  was  one  of  the  new  directors 
appointed  by  the  Supreme  Court.  In  1993  we  completed  the  reorganization 
of  the  Society  and  a  new  Board  of  Directors  was  elected. 

Puerto  Rico  National  Guard  Trust  -  The  Trust  was  established  by  law  In 
1991  to  provide  scholarships  for  children  of  guardsmen  and  aid  to  their 
families.  I  was  appointed  by  the  Governor  to  represent  the  public  interest. 
I  assisted  in  organizing  the  Trust  and  served  for  two  years. 

Puerto  Rico  Police  Advisory  Council  -  I  was  a  founding  member  of  the 
Council  in  1990  and  served  until  December,  1993.  We  acted  as  advisers  to 
the  Police  Superintendent  and  participated  in  numerous  police  and 
community  activities. 


47 


-25- 


Luis  Mufioz  Wc'tn  Foundation  -  Former  Governor  Luis  Mufioz  Marfn  was  the 
founder  and  architect  of  modern  Puerto  Rico  and  of  Commonwealth  status. 
I  was  a  director  and  later  President  of  the  foundation  for  over  10  years.  The 
Foundation  established  a  museum  and  archives  similar  to  those  of  a 
Presidential  Library  in  the  United  States.  Over  15,000  persons  visit  the 
archives  and  the  museum  each  year.  I  have  also  provided  pro  bono  legal 
advice  to  the  institution  together  with  my  firm. 

Puerto  Rico  Community  Foundation  •  I  was  founding  member  of  the  first  and 
only  community  foundation  in  Puerto  Rico,  established  eight  years  ago  with 
the  assistance  of  the  Ford  and  Rockefeller  Foundations.  As  a  director  I 
participated  in  fund  raising  activities  and  in  the  determination  of  programs  for 
the  Foundation.  I  have  also  provided  pro  bono  legal  advice  to  the  institution 
together  with  my  firm. 

Alliance  for  a  Druo  Free  Puerto  Rico  •  This  non-profit  entity  was  formed  last 
year  inspired  by  the  Partnership  for  a  Drug  Free  America.  I  am  a  member  of 
the  board  of  Directors  and  have  participated  in  preparing  and  launching  a 
massive  public  media  campaign  against  drugs  similar  to  that  of  the 
Partnership  in  the  United  States.  I  have  also  provided  pro  bono  legal  advice 
to  the  institution  together  with  my  firm. 

Centro  Sor  Isolina  Ferre  •  This  non-profit  institution  operates  three  centers 
for  the  needy  in  Ponce,  San  Juan  and  Guayama.  As  a  director,  I  have 
participated  in  determining  policy  and  in  fund  raising.  I  have  also  provided 
pro  bono  legal  advice  to  the  institution  together  with  my  firm. 

Committee  on  Economic  Development  •  This  non-profit  institution  is 
patterned  on  the  Committee  for  Economic  Development  of  the  United  States. 
I  have  been  a  member  for  over  eight  years  and  have  participated  in  several 
major  studies  relating  to  industrialization,  government  reorganization, 
tourism,  education  and  mass  transit.  I  have  also  provided  legal  services  pro 
bono  to  the  Committee. 

The  American  Bar  Association's  Commentary  to  its  Code  of  Judicial  Conduct 
states  that  it  is  inappropriate  for  a  judge  to  hold  membership  in  any 
organization  that  individually  discriminates  on  the  basis  of  race,  sex,  or 
religion.  Do  you  currently  belong.or  have  you  belonged,  to  any  organization 
which  discriminates  •-  through  either  formal  membership  requirements  or  the 
practical  implementation  of  membership  policies?  If  so,  list,  with  dates  of 
membership.  What  you  have  done  to  try  to  change  these  policies? 


48 


-26- 


No. 

3.  It  there  a  selection  commission  in  your  jurisdiction  to  recommend  candidates 
for  nomination  to  the  federal  courts?  If  so,  did  it  recommend  your 
nomination?  Please  describe  your  experience  in  the  entire  judicial  selection 
process,  from  beginning  to  end  (including  the  circumstances  which  let  to 
your  nomination  and  interviews  in  which  you  participated). 

No.  The  judicial  selection  process  has  been  a  lengthy  one.  Last  July,  the 
leadership  of  the  local  Democratic  Party  asked  me  if  they  could  submit  my 
name  for  consideration  by  President  Clinton.  After  consulting  with  my 
family,  I  informed  them  that  I  was  willing  to  be  considered.  Last  December 
I  received  a  letter  from  the  White  House  informing  me  that  I  was  being 
recommended  for  nomination  and  received  numerous  documents  to 
complete.  After  receiving  the  documents,  the  matter  was  referred  by  the 
White  House  to  the  Justice  Department  where  a  Deputy  Assistant  Attorney 
General  reviewed  them  and  interviewed  me  at  length  regarding  my 
background,  professional  expertise,  etc.  Thereafter  an  Assistant  Attorney 
General  and  his  staff  interviewed  me  in  Washington,  also  at  some  length. 
The  FBI  then  conducted  their  investigation  including  an  interview. 
Concurrently  with  the  FBI,  the  American  Bar  Association  also  started  their 
evaluation  which  concluded  with  a  personal  interview  with  the  ABA 
representative  in  Philadelphia.  Shortly  thereafter,  the  ABA  reported  favorably 
on  my  professional  qualifications  and  the  nomination  by  the  President  came 
a  few  days  later. 

4.  Has  anyone  involved  in  the  process  of  selecting  you  as  a  judicial  nominee 
discussed  with  you  any  specific  case,  legal  issue  or  question  in  a  manner 
that  could  reasonably  be  interpreted  as  asking  how  you  wold  rule  on  such 
case,  issue,  or  question?  If  so,  please  explain  fully. 

No. 

5.  Please  discuss  your  views  on  the  following  criticism  involving  "judicial 
activism." 

The  role  of  the  Federal  judiciary  within  the  Federal  government,  nd  within 
society  generally,  has  become  the  subject  of  increasing  controversy  in  recent 
years.  It  has  become  the  target  of  both  popular  and  academic  criticism  that 
alleges  that  the  judicial  branch  has  usurped  many  of  the  prerogatives  of  other 
branches  and  levels  of  government.  Some  of  the  characteristics  of  this 
"judicial  activism"  have  been  said  to  include: 


49 


-27- 


a.  A  tendency  by  the  judiciary  toward  problem-solution  rather  than 
grievance-resolution; 

b.  A  tendency  by  the  judiciary  to  employ  the  individual  plaintiff  as 
a  vehicle  for  the  imposition  of  far-reaching  orders  extending  to 
broad  classes  of  individuals; 

c.  A  tendency  by  the  judiciary  to  impose  broad,  affirmative  duties 
upon  governments  and  society; 


d. 


A  tendency  by  the  judiciary  toward  loosening  jurisdictional 
requirements  such  as  standing  and  ripens;  and 

e.  a  tendency  by  the  judiciary  to  impose  itself  upon  other 
institutions  in  the  manner  of  an  administrator  with  continuing 
oversight  responsibilities. 

I  believe  that  the  role  of  the  Federal  Judiciary  is  to  interpret  the  Constitution 
and  laws  of  the  United  States  in  cases  and  controversies  properly  brought  within 
its  limited  jurisdiction.  The  role  of  the  Federal  Judiciary  is  not  to  usurp  the  role  of 
the  political  branches  of  government. 

The  public  conception  that  the  Federal  Judiciary  has  become  more  active  is 
often  misplaced.  As  the  society  and  economy  of  our  nation  have  become 
increasingly  complex,  the  Federal  Government  has  had  no  alternative  but  to 
intervene  in  substantive  areas  previously  reserved  to  state  regulation.  The 
Congress  has  extensively  legislated  in  areas  of  economic  regulation  and  Federal 
Courts  have  inevitably  been  called  to  intervene  as  these  laws  have  given  rise  to 
litigation.  This  is  not  activism;  the  increased  role  of  the  Federal  Judiciary  mainly 
reflects  the  increased  preeminence  of  the  impact  and  pervasiveness  of  Federal  laws 
in  every  day  endeavors. 

It  is  indeed  true  that  in  fulfilling  its  constitutional  role,  the  Federal  Judiciary 
has  been  forced  to  resolve  difficult  issues;  some  of  which  involve  principles  of  the 
highest  possible  order.  However,  and  regardless  of  the  parties,  or  of  the 
importance  of  the  issues  involved.the  Federal  Judiciary  must  confront  these  issues 
within  the  framework  of  the  law  and  legal  precedent,  and  with  the  purpose  of 
achieving  justice. 

I  do  not  believe  that  the  Federal  Judiciary  should  be  utilized  as  a  vehicle  to 
advance  a  private  ideological  agenda,  nor  an  individual  seeking  justice  be  used  to 
affect  the  lives  of  persons  that  have  not  sought  legal  recourse.  It  is  not  the  role  of 


50 


-28- 


the  Federal  Judiciary  to  subvert  the  political  mandate  of  the  citizens  as  expressed 
by  the  political  process  by  imposing  obligations  upon  governmental  institutions  that 
do  not  arise  from  legislation. 

Federal  Courts  were  not  created  to  legislate,  for  that  role  was  reserved  to  the 
Congress  and  to  the  Legislatures  of  the  States.  Federal  Courts  were  not  created 
to  administer  the  laws  enacted  by  these  bodies;  it  is  incumbent  upon  the  Executive 
Branch  to  do  so.  I  believe  that  the  Federal  Judiciary  is  ill-equipped  to  regularly,  and 
as  a  matter  of  course,  engage  in  the  administration  and  oversight  of  governmental 
programs. 

To  the  contrary.  The  role  of  the  Federal  Judiciary  is  to  adjudicate  the  cases 
and  controversies  brought  to  them  and  to  interpret  the  laws  and  the  Constitution 
of  the  United  States.  I  believe  that  these  laws  must  be  given  the  effect  intended 
by  the  Congress,  which  is  the  political  branch  that  responds  to  the  citizenry. 

Finally,  it  must  be  kept  in  mind  that  the  Federal  Judiciary  is  the  one  entrusted 
to  interpret  the  Constitution  of  the  United  States.  This  prerogative  and  duty  must 
not  be  exercised  lightly,  but  instead  with  great  care  and  responsibility, with  wisdom 
and  independence  of  thought. 


51 

COUNSEL 


Fernando  Perez  Col6n,  Esq. 

Martinez  Odell  &  Calabria 

P.  0.  Box  363706 

San  Juan,  Puerto  Rico  00936-3706 

Tel.  (809)  763-0014 


Victor  M.  Pons,  Esq. 

(Former  Chief  Justice  of  Puerto  Rico) 

Centro  de  Seguros  Building 

Suite  41 5 

701  Ponce  de  Le6n  Ave. 

Miramar,  Puerto  Rico  00907 


(809)  723-2100 


Alberto  Santiago  Villalonga,  Esq. 

P.  0.  Box  9949 

Santurce,  Puerto  Rico  00908 

Tel.  (809)  724-1212 


Francisco  de  Jesus  Schuck,  Esq. 

(Former  Attorney  General  of  Puerto  Rico) 

Goldman,  Antonetti,  C6rdova 

GPO  Box  70364 

San  Juan,  Puerto  Rico  00936-0364 

Tel.  (809)  765-4540 


Julio  M.  Rodrfguez,  Esq. 

GPO  Box  3507 

San  Juan,  Puerto  Rico  00936-3507 

Tel.  (809)  759-3172 


52 


Gonz&lo  Sifre,  Esq. 
McConnell,  Valdes,  Kelley 
270  Mufioz  Rivera  Avenue 
Hato  Rey,  Puerto  Rico  00918 

Tel.  (809)  759-9292 


Antonio  Bird,  St.,  Esq. 

P.O.  Box  3128 

San  Juan,  Puerto  Rico  00902 

Tel.  (809)  721-0190 


Alvaro  Caldertin,  Esq. 

P.  0.  Box  2259 

Hato  Rey,  Puerto  Rico  00919-2259 

Tel.  (809)  753-5050 


Hon.  Hiram  R.  Cancio 
(Former  Federal  Judge) 
P.  0.  Box  5630 
San  Juan,  Puerto  Rico  00902 

Tel.  (809)  765-4540 


Hon.  Juan  R.  Torruella 

U.  S.  Court  of  Appeals 

First  Circuit 

Federal  Court  Building 

Ave.  Chard6n 

Hato  Rey,  Puerto  Rico  00918 

Tel.  (809)  787-2285 


53 


'|  JM*    |     FINANCIAL  DISCLOSURE  REPORT     KfSBKS^ 


I.  I— m  ■turrlBB  (loot  oooo,  am,  uui>  iaiua.ii 
CASELLAS,    SALVADOR  E. 


1.  TlUa     (Artlclo  XII  Ji 


ortooa  lodlcoto  actlvo  or 
ifjjjlittltt  JoOooo  ladlooto 


NOMINEE  -  U.  S.  DISTRICT  JUDGE 


P.  0.  Box  3507 

San  Juan,  Puerto  Rico  00936 


I.  Ooqr  or  On— l—tl— 

NOMINEE  -  UNITED  STATES 
DISTRICT  COURT  -  PUERTO  RICO 


5.  ftoport  typo  (oboe*  appropriate  tjrpa) 

JL.  — *— « i—.  Of  22   June   94 

jr_  Initial annual  riool 


1.  ana  of 

June   30,1994 


I.  Booortloo  torlsd 

1  Jan  1993 
30  Jun  1994 


■  •  Co  too  Ooala  of  too  loforoatloo  nnoTalooa  lo  tola  ■■iinil.   it 
la,  to  oy  oploloo,  lo  niamjllnin  with  opollaoalo  Ion  ood 
rogulotlooo  ^_ 

aovlovlog  Of  floor  iloootoro  _^^_^___^__^____^^__ 


IMPORTANT  NOTES:     The  instructions    accompanying    this  form  must  be  fallowed.    Complete  oil  parti, 
*->  Ike  NONE  box  far  each  aactJon  where  job  hare  no  reportable  information.  Sim  on  last  page. 

.—'■■■  ■■  ■■     '■■  .:■.'■■■  '■"..  " : ..    .  ■        ■  .■     ■ 


I.    POSITIONS.     (Reporting  individual  only;  see  pp.  7-6  of  Instructions.) 


□ 


POSITION 
Director 

NONE      no  roportoolo  pooltlooo) 

Civilian  Aide  Emeritus 
Partner 

Director 

Director 

Director 

Director 

rector 


M 

Di 


NAME  OF  ORGANTZATION/r-NTITY 

Estrategia  Puerto  Rico  (Non-Prof it) 

Secretary  of  the  Army 

Fiddler,  Gonzalez  &  Rodriguez  (Law  Firm) 

Pnai-Tn  P<r-ar,  famunt  n*  Tr,r-        (p..KH„  f^.p^y) 

Alliance  for  a  Drug  Free  Puerto  Rico  (Non-Prof it) 

Centros  Sor  Isolinarerre  (Non-Profit) 

Committee  for  Economic  Development  (Non-Prof it) 


_  irector 

II.   AGREEMENTS. 


Fundaci6n   Armel    Ramos    (Non-Prof i t ) 

Luis   Murioz   Marin    Foundation    iNon-Profit) 


D 


DATE 


(Reporting  individual  only,  fee  p.  8-9  of  Instructions.) 
PARTIES  AND  TERMS 


NONE      (Bo  roportoolo  ogr 


U According  to  the  Partnership  Agreement,  my  interest  in  the  Firm  of  Fiddler, 

Gonzalez  &  Rodriguez  (approximately  $200,000)  will  be  paid  during  5  years 
in  60  equal  payments. 

2)   My  deferred  compensation  as  a  Director  of  P.  R.  Cement  Co.  shall  be 

transferred  to  an  insurance  company  for  an  annuity  contract. 


III.    NON-INVESTMENT  INCOME.    (Reporting  individual  and  spouse;  see  pp.  9-12  of  Instructions.) 


□ 


DATE 

(Honoraria  only) 


SOURCE  AND  TYPE 


NONE      (Bo  roponohlo  i 


Director's  Fees  -  P.   R.    Cement  Company,    Inc. 


Salary   and   Bonus   -   Fiddler,    Gonzalez  &  Rodriguez 


OROSS  INCOME 
(yours,  not  spouse's) 


5  42,000.00 
$390,000.00 

$ 

$ 

$ 


54 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


a«M  of  Poxaoo  XasortlDO 

CASELLAS,  SALVADOR  E. 


Dot*  of  tepox-t 

30   Jun    1994 


IV.   REIMBURSEMENTS  and  GIFTS  -  transportation,  lodging,  food,  entertainment. 


(Includes  those  to  spouse  and  dependent  children;  use  the  parenthetJcals  '(S)"  and  '(DC)'  to  Indicate  reportable 
reimbursements  ana  gifts  received  by  spouse  and  dependent  children,  respectively.    See  pp. 13-15  of  Instructions.) 


H 


SOURCE 
NONE      (Bo  rach  lopoxtoblo 


DESCRIPTION 
ox  gifts) 


V.     OTHER  GIFTS.     (Includes  those  to  spouse  and  dependent  children;  use  the  parenthetJcals  *(S)'  and  '(DC)'  to 

Idepei  " 


indicate  other  gifts  received  by  spouse  and  dependent  children,  respectively.  Sec  pp. 15-16  of  Instructions.) 


SOURCE 
NONE     (le  0000  xoporuslo  olfu) 


H 


DESCRIPTION 


VALUE 


$_ 

$_ 
$_ 

s 


VI.     LIABILITIES.     (Includes  those  or  spouse  and  dependent  children;  Indicate  where  applicable,  person  responsible 
for  liability  by  using  the  parenthetical  '(S)'  for  separate  liability  of  spouse,  "(J)"  for  Joint  liability  of  reporting 
individual  and  spouse,  and  '(DC)'  for  liability  of  a  dependent  child.   Set  pp.16-18  orlnstructions.) 


t-qrprTQB 
NONE     (lo  raporttblo  lloollltlu) 

Rio  Arenas  Limited  Partnership 


□ 


DESCRDTION 


VALUE  CODE* 


San  Jose  Rental  Housing  S.  E. 


Crown  Life  Insurance  Co. 


Notes 

Payable 

Notes 

Payable 

Loan 

Payable 

D 


S 15, 000  or  law 

5250,001   to   5300, 000 


X  •  115,001  to  550,000 

O  -  $500,001   to  51,00,0,000 


1  •  530,001   to  5100,000 
P  -  MOTO  ttuu>   SI, 000, 000 


*  •   1100,001  to  US0, 000 


55 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


■a»a  of  P*r»cc  Reporting 

C AS ELLAS,  SALVADOR 


D*t*  of  Mpcrt 

30   Jun   94 


VII.    INVESTMENTS  and  TRUSTS  -  income,  value,  transactions. 

and  dependent  children;  tee  pp.  18-27  of  Instructions.) 


(Includes  those  of  spouse 


p— crlptloc  of  Aaaata 
(ucioolag  txuat  caaet*) 

Xadioata,  vfcar*  applicable,   owner  of 
tee  eaeet  by  e.i»g  to*  pereatbetleel 
•fJI*  for  joint  ownarahlp  cf  raport- 

•;  individual  and  .poo..,    •(alitor 
•.perata  omara&le  by  .peg..,    *(DC'j" 
.or  evoerahip  by  oependeot  child. 

Place  "(X)*  after  eaeb  eeoet 
eacespt  in  prior  dlacloaure. 

duriag 

c. 

Ore**  valo* 

at  end  ot 

reporting 
period 

s. 
Sraanotloa*  dmrlaa  reportioo  period 

id 

tat.. 

cod*1 

U-8) 

«iv.; 

TEv.f 

ID 

Vain*, 
Cod.'' 
(J-P) 

(J) 

Vain* 

Mat nod. 
Cod.-5 
fa-*) 

aanat, 
rSSSi 

•lion) 

XX  sot  aouopt  Xros,  diecloeore 

teL, 

Monti. 

(l) 

Valo*. 
coda' 

(J-P) 

So.' 

Idastlty  of 

STfitvia1 

tZABMOtiOB) 

1             1       NONE     (»o  roporcell. 

Inrn— .   aa.ata,   or 
L^b^J            treaeactlona ) 

1 

Accrued   Pension   Benefit 

P 

U 

Partnership   Interest   - 
Fiddler,    Gonzalez   &   Rdz. 

M 

II 

3Account   at   BankiTrust 
po.   of  PR  «7=;nnnp?592f Jl 

c 

Int 

M 

4Account   at   Merrill   Lync 
#141-50637    (J) 

h 
D 

Int 

J 

T 

'Account   at   Smith   Barney 
*R?7-nn«iOR-in_nifi   [j) 

n 

Int 

L 

T 

'Account   at   Paine   Webber 
aJX-21188-48    (J) 

A 

Int 

K 

T 

'Deferred   Compensation- 
P.R.    Cement   Co.IqCj.LJ) 

D 

Int 

M 

T 

IRA  Accounts    (J) 

C 

Int 

K 

T 

•Cash  Value    Ins.    Policie 
Crovn  Life   &   Eouitable(>! 

s 
) 

N 

T 

'$145   Shares   of   Common 
Stock-Bco.    Popular   P.R,.( 

DD 

Div 

M 

T 

1*5088   Common   Stock   of 
Bank   S,   Trust   Co.    of   PF(J 

B 

Div 

M 

H 

"200  Common   Stock   of 

Rnici    Pnmmprrfsl     Bank    (J 

A 

Div 

J 

H 

"3740  Preferred   Stock 
of   Bco.    Santande.r-P.B.K 

)D 

Div 

L 

T 

BouqhJ 

12/1 

7/93 

14  4000  Common   Stock  of 
Interstate   General    CoiJ 

A 

Div 

K 

T 

Bought 

4/ 

A   11 

1/94 

5  'pi 

2000  Common   Stock   of 

A 

Div 

K 

T 

Bought 

3/3 

0/94 
Q/cm 

_   2137   Common .Stock   of 
Innprsparp    MpdTraT    Pnrp. 

J) 

K 

H 

»  5   Class  A  Units   of 

Ran    .Tnsp  X*.fl.     PtnShiB.(J 

M 

V 

11  2   Class  A  Units   of 
Rio    Arpnas    T.td  ...PfcHSlliB, 

fJ) 

K 

W 

"  3  Units  Santa  Maria 
Associates  Ltd.    Ptnshic 

31 

K 

V 

"  2      Units  Rio  Mar 

(j) 

T. 

« 

Ronnht 

4/ 

3/94 

>  Xaooaa/eaia  Code*.      e-»i,oso  ax  1**.                 l-Ji.ooi  to  u,500                 c-jj,soi  to  3,000                  o-ii.ooi  to  SIS, 000 

■  i*m  Cal-   "  *  M'        f"jl»-001   to  SS0.0O0            »•§ 50.001   to  SIOO.OOO              O-S100.O01   to  11.000.000       1-Rora   than  11. 000. 000 

!  valo.  Cod*.:                    MlS.000  or  '•••                  l-JlJ,051  to  JlO.OOO               J.-j56,o61  io  Uoi.S&O JrTVBff.OOl  to  JjlcJoM 

IB*.  Col.    CI   1  Oil        fSJSO.OOl  to  SSOO.000       O-S300. 001   to  XI .000.000       P-Mor*  th.n  SI. 000. 000 

1  Oelac  Method  Cod*.:     S-ippraieel                           1-Coat  {real  alt.-.,  onlyl     S-Aa»..«»*ot           r,rT filaalTHaxUt 

l*a>  Col.  a)                Vlaok  valo*                         v*ota*r                                       v-I.tieatad 

22-790  -  96  -  3 


56 


CONTINUED   -  PAGE  2 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


■aaa  of  Paraoo  Saportlog 

CASELLAS,  SALVADOR  E. 


Data  of  Sapart 
30    Jun    94 


VII.   INVESTMENTS  and  TRUSTS  -  income,  value,  transactions,   (indodes  those  of  spouse 

and  dependent  children;  tee  pp.  18-27  of  Instructions.) 


Saacrlptiao  of  Aaaata 
tuclttdlag  tnat  aaaata) 

Xadiaata,  «tu«  appljraMa,  ovoax  of 
tba  aaaat  by  ualag  toa  paragthatlcal 
*(5|'  ?oz  joint  wwnblp  of  raport- 
log  ladivlaiul  u(  »poo»«,    »i»)r  tor 
aapaxata  ovearaalp  by  apeuaa.    *1DC)B 
gPnunaraMp  by  •apiaoast  child. 

flaoa  •(!)•   aftai  Met  ant 
-    anspt  ina  prior  diacloaura. 

curias 

*JJ3oiJ" 

e. 

Oroaa  valna 
at  and  of 

tS?IoiDB 

■A 

Trinaaotlona  dartoo  cvportiog  period 

u3 

alt.. 

ID 

valoa* 
Coda' 
tJ-PJ 

<S) 

«al«a 
Nathad, 

Coda' 

To-*) 

tjlaia. 

alrou, 

If  aot  oxaapt  irot  diacloaura 

Monti)' 
•MQf 

(>) 

Yal0G2 
coda2 

CoJS' 

i 

EduUiy  of 

XUHCtlOO) 

I            1      NONE    (Bo  rapoxtabla 
lAcoaa,  aaaata,  or 

1 

D.S.    Savings   Bonds 

c 

Int 

K 

V 

U.S.    Treasury  Notes 

B 

Int 

K 

T 

?ought 

2/3 

/94 

'  Federal    Farm   Credit 

Rnnds 

c 

Tut. 

K 

T 

1 

GNMA  Serial    Bonds 

E 

Int 

N 

T 

3ought 

3/1 

V93 

5  Puerto  Pico  Government 

Pnnne, 

E 

Int 

M 

T 

*  AFICA    Bonds    (P.    F. 
Financial     fturhnri  ty  ) 

E 

Int 

M 

T 

3ouoht 

1  2/2 

3/93 

7  CMO's   -    Banco   Santande 

anH     Pi  t  i  hank- 

r 

Tnf 

u 

T 

• 

Mortgage   Trust    Bonds 

E 

Int 

K 

T 

3ought 

9/7 

/93 

< 

10 

n 

12 

u 

14 

IS 

It 

17 

11 

IS 

20 

1  Imaa/Cala  Cosaat       afl,M0  or  laa.                   b-11,001  to  11,100                   c-12,501  to  5,000                     D-«S,001  to  S1I.000 

ftaa  eol.   SI   t   D<1       I-S15.001    to  HO.  000            P-JSO.001   to  S100.000              O-iioo.OOl   to  S1.000.DOO       ■•Mara  than  11.000.000 

i  KSS  CodaiS           5-$iS!oM  ot  la.i               I-!lS|o6l  to  JSS.Boo             Mlo.ool  le  lIU.OOO           ti.jlM,Bol  to  tSSo.oU 

1  fralaa  MathSc  Coomi     fr-Uppralaal     '                       lh-Co.t  (rial  altita  only)     i-A..aal»a«                             J-SaahAUrkat 
(Sao  Gel.  C3)                o-look  Valaa                         V-Otaar                                      V-Srtlaatae 

57 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


lu*  of  Ptrsos  bperclfio 

CASELLAS,    SALVADOR    E. 


D»tM  ef  Bapext 

30   Jun 


H 

1994  I 


VIII.   ADDITIONAL  INFORMATION  or  EXPLANATIONS,    (indicate  pan  or  Report) 


IX.    CERTIFICATION. 

In  compliance  with  the  provisions  of  28  L'.S.C  $  455  and  of  Advisory  Opinion  No.  57  of  the  Advisory  Committee  on 
Judicial  Activities,  and  to  the  best  of  my  knowledge  at  the  time  after  reasonable  inquiry,  I  did  not  perform  any  adjudicatory 
function  in  any  litigation  during  the  period  covered  by  this  report  in  which  I,  my  spouse,  or  my  minor  or  dependent  children 
had  a  fininrisl  interest,  as  defined  in  Canon  3C(3)(c),  in  the  outcome  of  such  litigation. 

I  certify  that  all  information  given  above  (including  information  pertaining  to  my  spouse  and  minor  or  dependent  children, 
if  any)  is  accurate,  true,  and  complete  to  the  best  of  my  knowledge  and  belief,  and  that  any  information  not  reported  was 
withheld  because  ft  met  applicable  statutory  provisions  permitting  non-disclosure. 

I  further  certify  that  earned  income  from  outside  employment  and  honoraria  and  the  acceptance  of  gifts  which  have  been 
reported  are  in  compliance  with  the  provisions  of  5  US.CA.  app.  7,  }  501  ei.  teq.,  5  L'.S.C  §  7353  and  Judicial  Conference 
regulations. 


Signature  _ 


Dm      1    July    1994 


NOTE:     ANY  INDIVIDUAL  WHO  KNOWINGLY  AND  WILFULLY  FALSIFIES  OR  FAILS  TO  FILE  THIS  REPORT 
MAY  BE  SUBJECT  TO  CIVIL  AND  CRIMINAL  SANCTIONS  (5  US.CA.  APP.  6,  «  104.  AND  18  US.C  I  1001.) 


FILING  INSTRUCTIONS: 

Mail 

signed  original 

and  3  additional 

copies  to: 

Judicial  Ethics  Committee 
Administrative  Office  of  the 

United  States  Courts 
Washington.  DC   20544 

58 

SALVADOR  E.  CAS ELLAS 

Financial  Statement 
June  30,  1994 


ASSETS 


Cash  in  Bank  Trust  $72,000. 

Cash  at  Paine  Webber  15,000. 

Cash  at  Merrill  Lynch  500. 

Cash  at  Smith  Barney  53,500. 

Deferred  Compensation  220,000. 

Cash  Values  Insurance  Policies  335,000. 

IRA  Account  42,000. 

Investments  -  Attachment  1  2,498,175. 

Real  Property  -  Attachment  2  450,000. 

Other  Fixed  Assets  -  Attachment  3  82,500. 

Accrued  Pension  Benefit  1.785.842. 


LIABILITIES 


S5. 554. 517. 


Mortgage  Loan  -  BBV-P.R.  150,000. 

Mortgage  Loan  -  Banco  Popular  140,000. 

Notes  Payable  Rio  Arenas  Limited  Partnership,  S.E.       25,000. 

Notes  Payable  San  Jose  Rental  Housing,  S.E.  39,000. 

Loan  Crown  Life  Insurance  Co.  55.900. 


409.900. 


Net  Worth  -  June  30,  1994  SS. 144. 617, 


59 


ATTACHMENT  1 


SALVADOR  E.  CASELLAS 

INVESTMENTS  AT  COST 
June  30,  1994 


Stocks 


Banco  Popular  (6,145  Common) 

Roig  Commercial  Bank  (200  Common) 

BankTrust  (6,088  Common) 

Caparra  Country  Club 

Interstate  General  (4,000  Common) 

Innerspace  Medical  Corp.  (2,137  Common) 

Banco  Santander  (3,740  pf.) 

Oriental  Federal  Bank  (2,000  Common) 


Partnership  Interest 

San  Jose  Rental  Housing,  S.E. 

Rio  Arenas  Ltd.  Div.  Ptnship. 

Santa  Maria  Associates,  S.  E. 

Rio  Mar  Associates  S.  E.  (2  Units)  Ltd. 

Fiddler,  Gonzalez  &  Rodriguez 


(5  Class  "A"  Units)  Ltd. 
(2  Class  "A"  Units) 
(3  Units)  Ltd. 


Securities 

U.  S.  Savings  Bonds  (1993  &  1998) 

U.  S.  Treasury  Notes 

Federal  Farm  Credit  Bonds 

GNMA  Mortgage  Serial  Notes 

PRASA  Bonds 

Puerto  Rico  Bonds 

P.R.  Telephone  Co.  Bonds 

AFICA  Bonds  -  1998  (Wal-Mart) 

AFICA  Bonds  -  (San  Patricio)  1999 

Mortgage  Trust  III  Bonds 

CMO  -  Banco  Santander 

CMO  -Citibank 

Structured  Mortgage  Trust  (1996) 

R&G  Fed.  Mortgage  Trust  (1999) 

P.  R.  Home  Mortgage  Trust  (5.95%) 


$184,350. 

2,000. 

117,000. 

600. 

26,725. 

50,000. 

99,000. 

51.500. 

$531.175. 


115,000. 

37,000. 

15,000. 

100,000. 

225.000. 

$492.000. 


45,000. 

25,000 

40,000. 
250,000. 

50,000. 

80,000. 

25,000. 
100,000. 
100,000. 
105,000. 
250,000. 
100,000. 
100,000. 
100,000. 
105.000. 

$1.475.000. 


TOTAL 


S2. 498. 175. 


60 


SALVADOR  E.  CASELLAS 


REAL  PROPERTY 
(At  cost) 

June  30,  1994 


ATTACHMENT  2 


Apartment  2609  -  Brickel  Bay  Club 
Miami,  Florida 


$100,000. 


Lot  (917.89  m/c)  and  House 

Urb.  Gardenville,  Guayanabo,  P.  R. 


150,000. 


Lot  No.  29  and  Villa  at  Isla  San  Marco 
Palmas  del  Mar 


200.000. 


SALVADOR  E.  CASELLAS 

OTHER  FIXED  ASSETS 

June  30,  1994 


6450.000. 


ATTACHMENT  3 


Personal  Effects  and  Furniture 


BMW  1990 


Boat  C-Hawk,  20  feet  with  trailer 


$45,000. 
21,000. 
16,000, 


682.500, 


61 

ANSWER  TO  QUESTIONNAIRE  FOR  JUDICIAL  NOMINEES 
I.  BIOGRAPHICAL  INFORMATION  (PUBLIC) 


Full  name;  (include  any  former  names  used.) 
Daniel  R.  Dominguez  Hernandez,  Esq. 

Address:  List  current  place  of  residence  and  office 
address (es) . 

1662  Jazmin  Street 

San  Francisco 

Rio  Piedras,  PR  00927 

Dominguez  &  Totti 

416  Ponce  de  Le6n  Avenue 

Suite  1200 

Hato  Rey,  PR  00919 

Date  and  place  of  birth. 

San  Juan,  Puerto  Rico 
July  2,  1945. 

Marital  Status  (include  maiden  name  of  wife,  or  husband's 
name) .  List  spouse's  occupation,  employer's  name  and  business 
address (es) . 

Married  to  Carmen  Irizarry  de  Dominguez  on  January  3,  1966. 
Mrs.  Irizarry  de  Dominguez  is  an  attorney  presently  working 
with  the  Supreme  Court  of  Puerto  Rico  as  Secretary  of  the 
Judicial  Conference. 

Education;  List  each  college  and  law  school  you  have 
attended,  including  dates  of  attendance,  degrees  received,  and 
dates  degrees  were  granted. 

Seton  Hall  University  (Honors  Program)  1963-1966 

Boston  University  B.A.  1966-1967 

University  of  Puerto  Rico  School  of  Law  LLB,  Cum  Laude,  1967- 

1970. 


62 


6.  Employment  Record;  List  (by  year)  all  business  or 
professional  corporations,  companies,  firms,  or  other 
enterprises,  partnerships,  institutions  and  organizations, 
nonprofit  or  otherwise,  including  firms,  with  which  you  were 
connected  as  an  officer,  director,  partner,  proprietor,  or 
employee  since  graduation  from  college. 

Graduated  from  Law  School  1970  and  started  to  work  with  Hector 
H.  Laffitte  Law  Offices  from  September  1970-1973  as  an 
Associate  Counsel.  In  1973  became  Partner  of  Laffitte  & 
Dominguez  Law  Offices  until  1980  when  the  law  firm's  name 
became  Laffitte,  Dominguez  &  Totti.  After  Mr.  Laffitte  was 
appointed  Federal  Judge,  in  1983  continued  as  Partner  of 
Dominguez  &  Totti  Law  Offices  until  the  present  time. 

Puerto  Rican  Cement  Company,  Inc. -(New  York  Stock  Exchange 

Cement  Company)  -  Secretary,  1992  -  to  present 

The  Luis  A.  Ferre  Foundation,  Inc.-  (Charitable  institution 

that  administers  the  only  accredited  Museum  in  Puerto  Rico  by 

the  American  Association  of  Museum)  -  Secretary,  1983  -  to 

present 

The  Ponce  Museum  of  Art-  (Museum  of  Art  in  Ponce,  P.R.)- 

Secretary,  1983  -  to  present 

Mediafax,  Inc.  (Surveys  of  T.V.  Audiences)  -  Secretary  (1990  - 

to  present) 

Stanford  Klapper  Associates,  Inc.-  (Commercial  and  industrial 

products  surveys)  -  Secretary,  1983  -  to  present 

7.  Military  Service;  Have  you  had  any  military  service?  If  so, 
give  particulars,  including  the  dates,  branch  of  service,  rank 
or  rate,  serial  number  and  type  of  discharge  received. 

Distinguished  Military  Student  (Boston  University)  1966 
United  States  Army  Reserve  Artillery  26  May  1967 
Distinguished  Military  Graduate  (Boston  University)  1967  - 
Commissioned  1st.  Lt.  Honorable  Discharge  (date  unknown) 

8.  Honors  and  Awards:  List  any  scholarships,  fellowships, 
honorary  degrees,  and  honorary  society  memberships  that  you 
believe  would  be  of  interest  to  the  Committee. 

Honor  student  at  Seton  Hall  University  during  the  year  1965  to 
1966.  Graduated  with  Honors  from  the  University  of  Puerto 
Rico  School  of  Law  1970. 

9.  Bar  Associations:  List  all  bar  associations,  legal  or 
judicial-related  committees  or  conferences  of  which  you  are  or 
have  been  a  member  and  give  the  titles  and  dates  of  any 
offices  which  you  have  held  in  such  groups. 

Puerto  Rico  Supreme  Court  Board  of  Bar  Examiners-  Admissions 
to  Practice  Law  (1981-1984) 


63 


Governor  Advisory  Committee  on  Labor  Policy  (1984) 

Board  of  Federal  Bar  Examiners  for  the  U.S.  District  Court,  PR 
(1989-to  present) 

Civil  Justice  Reform  Act  Advisory  Group  for  the  United  States 
District  Court  for  the  District  of  Puerto  Rico  1991-to  present 

Merit  Selection  Committee   for  the  Appointment  of  U.S. 
Magistrate  (1993) 

Committee  for  Judicial  Reform  of  the  Governor  of  Puerto  Rico 
(1993  -  to  present) 

Bar  Association  of  Puerto  Rico,  member  (1970  to  present  ) 
American  Bar  Association,  member  (1971  to  present) 
Federal  Bar  Association  of  PR,  member  (1990  to  present) 
Association  of  Labor  Relations  Practitioners  of  P.R.  -  Member 
(1973  to  present) 

Association  of  Labor  Relations  Practitioners  of  P.R.   - 
President  (1990-1992) 

Association  of  Labor  Relations  Practitioners  of  P.R.  (  1989- 
1990;  1992-1994)-  Director 

10.  Other  Memberships:  List  all  organizations  to  which  you  belong 
that  are  active  in  lobbying  before  public  bodies.  Please  list 
all  other  organizations  to  which  you  belong. 

Berwind  Country  Club  and  Hyatt  Dorado  Beach  Country  Club  - 
Golf  Courses  (By  Laws  enclosed  as  Exhibit  I) 

11.  Court  Admission:  List  all  courts  in  which  you  have  been 
admitted  to  practice,  with  dates  of  admission  and  lapses  if 
any  such  memberships  lapsed.  Please  explain  the  reason  for 
any  lapse  of  membership.  Give  the  same  information  for 
administrative  bodies  which  require  special  admission  to 
practice. 

Commonwealth  of  Puerto  Rico  Supreme  Court  -  1970 

U.S.  Court  of  Appeals,  1st.  Cir.  -  1971 

U.S.  District  Court  of  Puerto  Rico  -  1971 

U.S.  Supreme  Court  -  1976 

U.S.  Court  of  Appeals  Federal  Circuit  -  1988 

12.  Published  Writings:  List  the  titles,  publishers,  and  dates  of 
books,  articles,  reports,  or  other  published  material  you  have 
written  or  edited.  Please  supply  one  copy  of  all  published 
material  not  readily  available  to  the  Committee.  Also,  please 
supply  a  copy  of  all  speeches  by  you  on  issues  involving 
constitutional  law  or  legal  policy.    If  there  were  press 


64 


reports  about  the  speech,  and  they  are  readily  available  to 
you,  please  supply  them. 

There  are  no  published  writings.  The  undersigned,  as  past 
President  and  an  active  member  of  the  Association  of  Labor 
Relations  Practitioners  of  Puerto  Rico  and  the  Virgin  Islands 
frequently  was  guest  speaker  in  the  periodic  lunch  meetings  of 
the  Association.  The  legal  issues  which  I  was  asked  to  address 
consisted  of  an  analysis  of  new  labor  legislation,  important 
state  and  federal  labor  court  decisions,  and  current  important 
labor  issues. 

Furthermore,  on  several  occasions  I  have  been  invited  by 
professors  at  the  University  of  Puerto  Rico  to  lecture  on 
first  amendment  libel  matters  and  on  judicial  reform  in  Puerto 
Rico.  Professor  Demetrio  Fernandez  requested  that  I  lecture 
together  with  him  on  first  amendment  libel  issues  and 
Professor  Fernando  Agrait  requested  that  I  lecture  his  class 
on  the  proposed  judicial  reform  of  current  Governor  of  Puerto 
Rico,  Hon.  Pedro  Rossellb  Gonzalez.  (There  are  no  written 
materials. ) 

I  have  also  in  the  past  lectured  at  the  P.R.  Bar  Association 
on  handling  and  defending  wage  and  hour  cases  under 
puertorrican  law.  These  lectures  were  given  together  with 
attorney  Ruy  N.  Delgado  Zayas,  who  then  was  Director  of  the 
Legal  Division  of  the  Labor  Department  of  Puerto  Rico  and 
later  became  the  Secretary  of  Labor  for  the  years  between  1988 
and  1992  inclusive,  and  with  Supreme  Court  Justice  Peter 
Ortiz,  acting  as  Trial  Judge  during  the  Seminar.  (There  are 
no  written  materials.) 

As  President  and  Director  of  the  Association  of  Labor 
Relations  Practitioners  for  Puerto  Rico  and  the  Virgin  Islands 
I  was  also  requested  to  appear  before  private  and  public 
institutions  to  provide  lectures  on  new  labor  legislation 
and/or  current  judicial  state  and  federal  decisions.  (There 
are  no  written  materials.) 

I  am  enclosing  herein  Programs  and/or  Announcements  relating 
to  speeches  of  the  undersigned  as  guest  speaker  pro-bono  as 
Exhibit  II. 

(1)  Symposium  held  at  the  P.R.  Bar  Association  sponsored  by 
the  P.R.  Newspaper  Writers  Ass.  (June  1987). 

(2)  Seminar  on  Jury  Trials  sponsored  by  the  Federal  Bar  Ass. 
of  P.R.  (Nov.  1988) . 

(3)  Bar  Association  Symposium  on  access  by  the  press  to  public 
documents  (Oct.  1990) . 


65 


(4)  Seminar  on  the  Americans  with  Disabilities  Act  (August 
1991) . 

(5)  Seminar  on  continued  education  -  Labor  Law  Wage  and  Hour 
claims  (April  1983). 

(6)  Forum  -  How  to  handle  labor  arbitrations  -  Labor 
Department  (Agust  1981) . 

(7)  Public  Hearings  Amendments  to  State  Insurance  fund  Law 
(April  1987) . 

(8)  P.R.  Labor  Practitioners:   New  trends  in  handling  sexual 
harassment  cases  (August  1988) . 

13.  Health:  What  is  the  present  state  of  your  health?  List  the 
date  of  your  last  physical  examination. 

Excellent.   Last  Physical  Examination  June  1990. 

14.  Judicial  Office:  State  (chronologically)  any  judicial  offices 
you  have  held,  whether  such  position  was  elected  or  appointed, 
and  a  description  of  the  jurisdiction  of  each  such  court. 

None. 

15.  Citations:  If  you  are  or  have  been  judge,  provide:  (1) 
citations  for  the  ten  most  significant  opinions  you  have 
written;  (2)  a  short  summary  of  and  citations  for  all 
appellate  opinions  where  your  decisions  were  reversed  or  where 
your  judgment  was  affirmed  with  significant  criticism  of  your 
substantive  or  procedural  rulings;  and  (3)  citations  for 
significant  opinions  on  federal  or  state  constitutional 
issues,  together  with  the  citation  to  appellate  court  rulings 
on  such  opinions.  If  any  of  the  opinions  listed  were  not 
officially  reported,  please  provide  copies  of  the  opinions. 

None. 

16.  Public  Office:  State  (chronologically)  any  public  offices  you 
have  held,  other  than  judicial  offices,  including  the  terms  of 
service  and  whether  such  positions  were  elected  or  appointed, 
State  (chronologically)  any  unsuccessful  candidacies  for 
elective  public  office. 

None. 

17.  Legal  Career: 

a.    Describe  chronologically  your  law  practice  and  experience 
after  graduation  from  law  school  including: 


66 


1.  Whether  you  serve  as  clerk  to  a  judge,  and  if  so, 
the  name  of  the  judge,  the  court,  and  the  dates  of 
the  period  you  were  a  clerk: 

Although  I  was  accepted  to  be  the  Clerk  of 
Associate  Justice  of  the  Supreme  Court  Hiram  Torres 
Rigual  for  the  year  1970,  I  did  not  serve  because 
the  substituted  Clerk  who  had  an  employment  offer 
lost  the  job  offer.  Since  I  had  other  employment 
opportunities  I  advised  Hon.  Judge  Torres  Rigual  to 
continue  the  employment  of  his  current  Clerk. 

2.  Whether  you  practiced  alone,  and  if  so,  the 
addresses  and  dates: 

From  1970  to  1973  was  associate  counsel  at  Hector 
M.  Laffitte  Law  Office. 

In  1973  became  Partner  of  Laffitte  &  Dominguez  Law 
Offices  until  1980  when  the  law  firm's  name  became 
Laffitte  Dominguez  &  Totti.  After  Mr.  Laffitte  was 
appointed  Federal  Judge,  in  1983  continued  as 
Partner  of  Dominguez  &  Totti  law  Offices  until  the 
present  time. 

3.  The  dates,  names  and  addresses  of  law  firms  or 
offices,  companies  or  governmental  agencies  with 
which  you  have  been  connected,  and  the  nature  of 
your  connection  with  each: 

Graduated  from  Law  School  1970  and  started  to  work 
with  Hector  M.  Laffitte  Law  Offices  from  September 
1970-1973  as  an  Associate  Counsel.  In  1973  became 
Partner  of  Laffitte  &  Dominguez  Law  Offices  until 
1980  when  the  law  firm's  name  became  Laffitte 
Dominguez  &  Totti.  After  Mr.  Laffitte  was 
appointed  Federal  Judge,  in  1983  continued  as 
Partner  of  Dominguez  &  Totti  law  Offices  until  the 
present  time. 

b.  1.  What  has  been  the  general  character  of  your  law 
practice,  dividing  it  into  periods  with  dates  if 
its  character  has  changed  over  the  years: 

The  general  character  of  my  practice  from  1970  to 
present  has  varied  among  the  fields  of  labor, 
corporate,  civil,  constitutional  and  administrative 
law.  I  began  to  concentrate  in  federal  claims  in 
1974. 

2.  Describe  your  typical  former  clients,  and  mention 
the  areas,  if  any,  in  which  you  have  specialized: 


67 


The  typical  clients  I  have  had  are  from  the  private 
as  well  as  from  the  public  sectors,  including 
corporations,  universities  and  government 
corporations  and  agencies.  I  have  specialized  in 
the  labor,   employment  and  civil  rights  law  areas. 

1.  Did  you  appear  in  court  frequently,  occasionally, 
or  not  at  all?  If  the  frequency  of  your  appearances 
in  court  varied,  describe  each  such  variance, 
giving  dates: 

I  have  appeared  as  lead  counsel  in  federal  courts 
since  1971  to  the  present  regularly  and  frequently. 
The  undersigned  has  in  excess  of  twenty  five 
published  cases  in  the  federal  system  and  in  excess 
of  ten  cases  published  by  the  Supreme  Court  of 
Puerto  Rico. 

2.  What  percentage  of  these  appearances  was  in: 

a.  federal  courts; 

b.  state  courts  of  record; 

c.  other  courts. 

a.  Federal  courts:  Sixty  (60)  percent  of  my 
appearances  in  court  have  been  in  federal 
court. 

b.  State  courts  of  record:  Thirty  (30)  percent  of 
my  appearances  in  court  have  been  in  the  state 
courts. 

c.  Other  courts:  I  have  not  appeared  in  any  other 
courts  but  I  practice  also  regularly  in 
Federal  and  State  Labor  Relations  Agencies 
(10%).  (NLRB,  Arbitration  Bureaus,  NSHA,  OSHA, 
etc.) 

3.  What  percentage  of  your  litigation  was: 

a.  civil; 

b.  criminal. 

Almost  one  hundred  (100)  percent  of  my  litigation 
was  in  civil  law.  Although  I  have  in  the  past 
(1974-1980)  been  court  appointed  to  handle  criminal 
cases:  U.S.  v.  Nunez,  511  F  2d  874  (1st.  Cir. 
1975) . 


68 


4.  State  the  number  of  cases  in  courts  of  record  you 
tried  to  verdict  or  judgment  (rather  than  settled) , 
indicating  whether  you  were  sole  counsel,  chief 
counsel,  or  associate  counsel: 

I  have  tried  in  excess  of  one  hundred  cases  in  the 
last  ten  years  in  the  federal  and  state  systems.  In 
trial  cases  I  am  usually  the  lead  counsel  as  the 
Senior  Partner  of  the  firm;  on  appeal  I  encourage 
for  certain  cases  the  hiring  of  co-counsel  that  may 
have  recognized  expertise. 

5.  What  percentage  of  these  trials  was: 

a.  jury;  0 

b.  non-jury.  100% 

There  are  no  jury  cases  in  civil  practice  in  the 
Commonwealth  of  Puerto  Rico  System.  The  practice  in 
Federal  Court  in  labor  and  civil  rights  has  been  in 
the  past  five  years  mostly  non-jury. 

18.  Litigation:  Describe  the  ten  most  significant  litigated 
matters  which  you  personally  handled.  Give  the  citations,  if 
the  cases  were  reported,  and  the  docket  number  and  date  if 
unreported.  Give  a  capsule  summary  of  the  substance  of  each 
case.  Identify  the  party  or  parties  whom  you  represented; 
describe  in  detail  the  nature  of  your  participation  in  the 
litigation  and  the  final  disposition  of  the  case.  Also  state 
as  to  each  case: 

(a)  the  date  of  representation; 

(b)  the  name  of  the  court  and  the  name  of  the  judge  or  judges 
before  whom  the  case  litigated;  and 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of 
co-counsel  and  of  principal  counsel  for  each  of  the  other 
parties. 

A.  SUAREZ  V.  FUNDACION  ANA  G.  MENDEZ,  464  U.S.  879  (1983) 

Organized  professors  seeking  the  modification  of  a 
collective  bargaining  agreement  engaged  in  a  strike  in 
violation  of  Section  8D  of  the  Taft-Hartley  Act  because  of 
failure  to  provide  the  previous  notice  of  strike  required 
under  the  federal  law.  The  undersigned  represented  the 
University  as  labor  counsel.  Since  the  remedy  under  the 
federal  statute  is  that  the  striking  employees  lose  their 
condition  of  employment,  upon  termination  of  the  strike,  the 
University  refused  to  rehire  them.  The  professors  then 
instituted  a  claim  in  state  court  alleging  a  violation  of 
their  individual  contracts  with  the  University.  The  Supreme 
Court  of  Puerto  Rico  granted  all  striking  professors  four 

8 


69 


years  of  back  pay  plus  lawyers1  fees  in  a  majority  opinion 
with  one  judge  dissenting.  The  case  is  reported  at  114  lrrm 
2731  (1983).  The  University  throughout  all  state  proceedings 
alleged  that  the  case  was  preempted  by  federal  law,  the  Taft- 
Hartley  Act,  and  hence  no  state  remedy  of  reposition  and  back 
pay  could  be  granted  against  the  federal  remedy  of  the 
professors  losing  their  status  of  employment  for  violating 
federal  law.  The  case  was  appealed  to  the  United  States 
Supreme  Court  wherein  the  court  via  summary  disposition 
reversed  in  a  one  paragraph  opinion  citing  the  case  of  Local 
926,  International  Union  of  Operating  Engineers  AFL-CIO  V. 
Jones,  103  St.  Ct.  1453  (1983).  The  Supreme  Court  of  the 
United  States  Order  is  reported  at  464  U.S.  879  (1983). 

The  undersigned  handled  the  litigation  (1980-1983)  before 
the  National  Labor  Relations  Board  and  the  state  trial  and 
appeal  litigation  and  was  co-counsel  on  the  brief  on  appeal 
proceedings  to  the  U.S.  Supreme  Court  together  with  the  firm 
of  Proskauer  Rose  Goetz  &  Mendelhson  of  New  York  City, 
attorney  Carole  O'Blenes,  telephone  number  (212)  969-3055. 
Opposing  counsel  were  attorneys  Juan  F.  Pagani  and  Juan  R. 
Acevedo.  Telephone  Mr.  Juan  R.  Acevedo  (809)  766-4233  - 
address  Mayaguez  St.  #44,  San  Juan,  PR  00917-4915.  Telephone 
Juan  F.  Pagani  (809)  765-4210  -  Barbosa  Avenue  #602,  San  Juan, 
PR  00917-4310.  The  NLRB  administrative  proceedings  are 
reported  at  265  NLRB  No.  3,  111  LRRM  1499  (1982). 

The  case  is  important  because  the  principles  of  federal 
labor  preemption  prevailed  and  the  Supreme  Court  of  Puerto 
Rico  was  counseled  as  to  this  crucial  federalism  principle. 

B.    UNIVERSIDAD  CENTRAL  DE  BAYAMON  V.  NLRB,  793  F  2d.  383;  En 
Banc  at  793  F  2d.  398  (1st.  Cir.  1985). 

Professors  at  a  Catholic  University,  Universidad  Central 
de  Bayam6n,  hereinafter  referred  to  as  UCB,  attempted  to  join 
a  labor  organization  as  authorized  under  the  Taft-Hartley  Act. 
The  undersigned  represented  the  University,  UCB. 

At  the  NLRB  administrative  level  the  University  opposed 
the  petition  based  on  the  Supreme  Court  case  of  NLRB  v. 
Catholic  Bishop  University,  440  U.S.  490  (1979)  because  there 
was  a  potential  of  entanglement  between  the  NLRB  and  the 
University  which  was  controlled  by  an  Order  of  Dominican 
Priests.  The  President  of  the  University  was  a  Dominican  as 
well  as  the  majority  of  University  trustees;  lands  and 
buildings  were  donated  by  the  Dominican  Order.  Dominican 
Priests  further  controlled  key  managerial  positions  at  the 
University.  The  University  further  objected  to  the  petition 
based  on  the  case  of  NLRB  v.  Yeshiva  University,  444  U.S.  672 
(1980)  because  the  faculty  enjoyed  managerial  prerogatives. 


70 


The  24th  Region  of  the  NLRB  dismissed  the  defenses  and  ordered 
an  election.  After  certification  of  the  results,  the 
University  refused  to  bargain.  The  NLRB  dismissed  the 
Catholic  Bishop  defense  as  well  as  the  Yeshiva  defense.  273 
NLRB  No.  138;  118  LRRM  1593  (1984).  The  case  was  then  appealed 
to  the  First  Circuit  Court. 

Originally  the  Circuit  Court  of  Boston  enforced  the  order 
in  a  two  to  one  decision,  793  F  2d  383  (1985) ;  however  after 
an  en  banc  hearing  the  Circuit  Court  could  not  enforce  the 
order  because  the  court  was  divided  in  a  three  to  three 
decision. 

The  undersigned  handled  all  matters  at  the  NLRB  hearings 
including  the  appeal  to  the  NLRB  in  Washington,  D.C.  (1983- 
1985) .  The  undersigned  was  co-counsel  at  the  Circuit  Court 
level  with  the  firm  of  Proskauer  Rose  Goetz  &  Mendelhson, 
attorney  Carole  O'Blenes,  Telephone  (212)  969-3055.  The 
opposing  counsel  was  counsel  for  NLRB  General  Counsel  Barbara 
A.  Atkin,  telephone  number  (202)  273-3700. 

The  case  is  important  because  the  doctrine  of  Catholic 
Bishop,  a  high  school,  was  extended  to  universities  and 
further  because  representation  petitions  of  the  faculty  of 
religiously  controlled  universities  must  now  comply  the 
doctrines  of  the  Supreme  Court  cases  of  Yeshiva  University, 
Catholic  Bishop  and  Universidad  Central  de  Bayam6n. 


C.  BENNY  FRANKIE  CEREZO  V.  UNIVERSIDAD  DE  PUERTO  RICO,  U.S. 
District  Court  of  P.R.,  Perez  Gimenez,  J.D.,  No.  90-1323, 
1990  W.L.  29796. 

This  case  is  a  civil  rights  claim  under  the  First 
Amendment  wherein  an  injunction  was  requested.  In  1990  a 
Committee  of  the  United  States  Congress,  the  Subcommittee  on 
International  and  Territorial  Affairs,  was  holding  hearings 
throughout  the  island  of  Puerto  Rico  relating  to  a  potential 
federal  plebiscite  election  law  to  be  held  in  Puerto  Rico. 
Congressional  hearings  were  held  in  different  institutions  and 
towns  in  Puerto  Rico  on  various  dates.  The  federal  plebiscite 
envisioned  granted  the  three  political  formulas  the  right  to 
participate  in  the  potential  federal  elections.  The  political 
formulas  were  Statehood,  Independence  and  Commonwealth. 
Independence  followers  as  well  as  pro-Commonwealth  followers 
were  authorized  to  organize  a  march  of  sympathizers  to 
demonstrate  support  to  the  Congressional  Subcommittee  holding 
hearings.  When  Statehood  sympathizers  attempted  to  organize  as 
march  of  sympathizers  through  the  University  of  Puerto  Rico, 
Ponce  College,  where  the  Committee  was  holding  hearings,  the 
University  alleged  security  and  property  reasons,  in  refusing 
to  authorize  the  march  of  Statehood  sympathizers  to  march 

10 


71 


through  the  university  through  a  street  near  where  hearings 
were  to  be  held. 

A  civil  rights  injunction  was  filed  by  pro-Statehood 
sympathizers.  The  undersigned  was  the  lead  counsel  for  the 
pro-Statehood  movement  together  with  an  associate  of  the  firm 
Enrique  M.  Bray,  Esq.  and  a  University  Professor,  Carlos  Diaz 
Olivo,  Esq.  Hr.  Enrique  Bray  is  no  longer  with  this  firm  and 
may  be  found  at  (809)  724-1212;  Mr.  Carlos  Diaz  Olivo  may  be 
found  at  the  University  of  Puerto  Rico  School  of  Law  (809) 
764-0000  (request  School  of  Law  extension).  Mr.  Bray's  office 
is  now  at  1250  Ponce  de  Leon  Avenue,  Santurce,  PR. 

The  Court  held  that  the  Ponce  University  campus  became  a 
"public  property  which  the  state  has  opened  for  use  by  the 
public  as  a  place  for  expressive  activity"  because  the  campus 
accepted  public  Congressional  hearings  be  held,  hence  it  could 
not  prohibit  peaceful  demonstration  on  campus  relating  to  said 
activities. 

The  case  once  again  reiterated  the  principle  that  the 
First  Amendment  forbids  governmental  action  "abridging  the 
freedom  of  speech"  or  the  "right  of  the  people  to  peaceful 
assembly" . 

Opposing  counsel  was  the  firm  of  Lino  Saldafia,  Esq. 
Telephone  Number  (809)  766-4085.  Box  13954,  Santurce,  PR 
00908,  Edif.  Hato  Rey  Tower,  Munoz  Rivera  268,  Hato  Rey,  PR. 


D.    CUESNOGLE  v.  RAMOS,  835  F  2d.  1486  (1st.  Cir.  1987) 

This  case  is  the  treatise  of  Pennhurst  abstention  of  the 
First  Circuit  Court  of  Appeals. 

The  case  involves  a  consumer  affairs  state  agency  attempt 
to  regulate  a  University.  A  strike  by  professors  had 
shortened  a  semester  period;  a  group  of  students  filed  a 
complaint  seeking  partial  reimbursement  of  tuition  in  the 
Ccnsummer  Affairs  Department  of  Puerto  Rico. 

The  case  was  originally  filed  at  the  U.S.  District  Court, 
was  then  appealed  to  the  Circuit  Court,  remanded  to  the  U.S. 
District  Court,  after  judgment  once  again  appealed  to  the 
Circuit  Court  which  certified  a  question  of  local  law  to  the 
State  Supreme  Court  and  finally  when  the  Supreme  Court  of  the 
State  refused  the  certificate  was  decided  by  the  Circuit  Court 
at  the  above  citation. 

The  undersigned  represented  the  University,  Universidad 
Central  de  Bayam6n  (UCB) ,  only  in  proceedings  at  the  Circuit 
Court  of  Appeals  in  1987  after  the  Supreme  Court  of  Puerto 

11 


72 


Rico  decided  to  refuse  the  certification  request  made  by  the 
Circuit  Court  of  Boston.  A  Memorandum  on  the  effect  of  the 
refusal  of  the  Supreme  Court  of  Puerto  Rico  on  accepting  the 
certification  was  prepared  by  the  undersigned  and  attorney 
Juan  M.  Garcia  Passalacqua,  telephone  number  (809)  758-5029, 
Parque  de  las  Fuentes  Condominium  #503,  Hato  Rey,  PR  00918. 

After  issuing  a  twenty  page  opinion  the  conclusion  of  the 
court  was  the  following: 

"Our  disposition  here  is  ironic.  Appellant  may  well  be 
correct  that  DACO  misread  the  University  Catalogue  to 
guarantee  tuition  reimbursement  when  classes  are  cancelled. 
UCB  may  also  be  correct  that  DACO's  organic  statute  does  not 
provide  that  agency  jurisdiction  over  university  matters.  Yet 
after  six  years  of  litigation,  UCB's  federal  claims,  have  been 
finally  rejected.  We  regret  that  we  have  had  to  reach  this 
point  in  a  case  where  a  simple  contract  interpretation  might 
have  resolved  the  controversy." 

Opposing  counsel  was  Mejori  Rivera  Rodriguez,  Acting 
Solicitor  General  of  the  Department  of  Justice.  I  do  not  know 
her  current  address  or  phone  number  because  after  resignation 
from  the  Department  of  Justice,  her  whereabouts  are  unknown  by 
the  Department  of  Justice. 

E.    FLORENCIO  ROMAN,  INC.  v.  CTMT,  614  F  2d.  9  (1980) 

This  case  is  an  appeal  to  a  verdict  rendered  to  a 
consignee  for  damages  to  several  maritime  shipments  of  fruits 
and  vegetables.  The  undersigned  represented  appellees- 
plaintiff.  Defendant  maritime  company,  appellant,  was 
represented  by  Hon.  Jose  A.  Fuste,  now  U.S.  District  Judge  in 
Puerto  Rico,  telephone  number  (809)  766-5774;  U.S.  District 
Court,  Chard6n  Avenue,  Hato  Rey,  PR  00919. 

The  case  is  important  only  because  the  First  Circuit 
Court  corrected  under  COGSA  Law,  Carriage  of  Goods  by  Sea  Act, 
46  USCA  1300-1315,  unexplained  and  unjustified  expansions  of 
the  defense  of  "shippers  load  and  count"  contained  in 
jurisprudence  being  frequently  cited  by  the  District  Court  of 
Puerto  Rico.  The  Circuit  Court  further  cited  the  long  standing 
principle  that  factual  matters  are  usually  not  entertained  on 
appeal . 

The  case  was  tried  in  the  U.S.  District  Court  of  P.R. 
before  visiting  judge  George  Templer,  Senior  District  Judge. 


12 


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F.    EL  DIA,  INC.  V.  HERNANDEZ  COLON,  963  F  2d.  488  (1992) 

This  case  is  a  First  Amendment  Civil  Rights  complaint 
filed  by  the  publisher  of  a  major  Puerto  Rico  newspaper 
against  the  Governor  of  Puerto  Rico  for  the  enactment  of  an 
executive  order  which  severely  curtailed  access  to  public 
documents.  In  another  litigation  amongst  the  same  parties  and 
on  the  same  issue  an  injunction  was  filed  and  a  TRO  granted 
under  state  law  by  the  Superior  Court  of  Puerto  Rico,  San 
Juan  Section,  Civil  No.  KPE  91-0999  (907).  The  District  Court 
of  Puerto  Rico,  Perez  Gimenez,  J.D.,  granted  the  injunctive 
relief  because  the  executive  order  impermissibly  chilled 
expressions,  thwarted  freedom  of  the  press,  contravened  due 
process  and  undercut  freedom  of  the  press.  The  District  Court 
Opinion  is  at  783  F.  Supp.  15  (D.P.R.  1991).  The  Circuit  Court 
reversed  stating  that  the  federal  court  should  have  abstained 
from  issuing  a  declaratory  judgment  injunction  because  there 
already  was  a  parallel  state  litigation  which  had  granted  a 
TRO  based  on  state  law.  Further  the  court  stated  that 
constitutional  rights  should  generally  not  be  adjudicated  via 
Declaratory  Judgment  specially  since  the  constitutional  right 
under  the  First  Amendment  of  access  to  executive  documents  is 
not  a  clear  right.  The  court  provided  other  reasons  for 
abstention,  however,  the  underlying  major  criteria  was  that  a 
TRO  had  been  issued  in  a  parallel  litigation  amongst  the  same 
parties  but  under  state  law.  Unfortunately  the  Circuit  Court 
did  not  explain  or  distinguish  this  case  from  the  case  of 
Rojas  Hernandez  v.  Puerto  Rico  Electric  Power  Authority,  925 
F  2d.  492  (1st.  Cir.  1991)  and  the  case  of  Villa  Marina  Yacht 
Sales  Inc.  v.  Hatteras  Yachts,  947  F  2d  529  (1st.  Cir.  1991) 
wherein  based  on  the  case  of  Colorado  River  Conservation 
District  v.  U.S.,  424  U.S.  800  (1975)  the  court  stated  that 
parallel  state  litigation  should  not  suppress  federal 
jurisdiction  because  of  the  "virtually  unflagging  obligation 
of  the  federal  courts  to  exercise  the  jurisdiction  given 
them" . 

The  TRO  granted  under  state  law  in  state  court  became 
latter  a  permanent  injunction,  was  appealed  to  the  Supreme 
Court  of  P.R.  wherein  the  case  became  moot  when  the  new 
Governor  of  Puerto  Rico,  Pedro  Rossell6,  rescinded  the 
executive  order. 

Counsel  for  the  opposing  party  was  Lino  Saldafia,  Esq., 
Telephone  Number  (809)  766-4085,  Box  13954,  Santurce,  PR 
00908.  The  undersigned  represented  El  Dia,  Inc.  in  state 
proceedings  and  in  the  U.S.  District  Court  and  was  co-counsel 
with  attorney  Susan  Garsh  of  the  firm  of  Bingham  Dana  &  Gould 
of  Boston,  Mass.  Ms.  Garsh  is  now  a  State  Judge  in  the 
Massachusetts  system.  Her  telephone  number  is  (508)  453-7032; 
(617)  725-8130. 


13 


74 


G.    CARIBBEAN  PRODUCE  EXCHANGE,  INC.  V.  SEA  LAND  SERVICE, 
INC.,  415  F.  Supp.  88  (1976)  J.  Torruella  J.D. 

This  case  is  a  cargo  claim  under  the  Carriage  of  Goods  by 
Sea  Act,  46  USCA  1300-1315  tried  at  the  U.S.  District  Court 
level  on  admiralty  jurisdiction.  The  maritime  company  provided 
a  special  service  for  its  customers  consisting  of  a  controlled 
atmosphere  in  its  refrigerated  vans  using  nitrogen  and  oxygen 
to  delay  the  ripening  of  the  fruit.  The  Company  although 
charging  additional  amounts  of  freight  for  the  controlled 
atmosphere  service  notwithstanding  in  the  published  tariff 
declined  any  and  all  liability  to  the  customer  who  used  the 
service.  Caribbean  Produce  used  the  controlled  atmosphere 
service  called  oxytrol;  the  fruits,  however,  arrived  in  Puerto 
Rico  spoiled.  The  maritime  company  defended  the  case  based  on 
the  limitation  of  liability  contained  in  the  tariff.  The  court 
found  the  limitation  of  liability  invalid  because  no  carrier 
under  COGSA  Law  can  limit  its  liability  beyond  the  authority 
of  the  federal  statute. 

The  undersigned  handled  all  litigation  in  this  case 
including  a  proposed  Judgment  Order  that  was  signed  by  Judge 
Torruella,  now  Circuit  Court  Judge  for  the  First  Circuit. 
Counsel  for  the  opposing  party  was  Hon.  Jose  A.  Fuste,  now  US. 
District  Judge  for  the  District  of  Puerto  Rico,  Telephone 
(809)  766-5774,  U.S.  District  court  for  Puerto  Rico,  Room  150 
Federal  Building,  Carlos  Chard6n  Avenue,  Hato  Rey,  PR  00918- 
1767. 


H.    U.S.  V.  RALSTON  DOUGLAS  NUNEZ,  511  F2d  871  (1975) 

The  undersigned  was  court  appointed  counsel  of  defendant 
a  copilot  of  a  small  plane.  The  copilot,  a  Jamaican,  was  in  a 
flight  from  Jamaica  to  Beef  Island,  British  Virgin  Islands. 
The  copilot  did  not  have  any  knowledge  when  he  accepted  the 
flight  that  375  lbs.  of  marijuana  were  inside  suitcases  in  the 
cargo  deck  of  the  plane.  The  plane  had  only  visual  flight 
equipment;  that  plane  got  lost  and  landed  in  Puerto  Rico 
without  fuel  and  under  distress.  After  refueling,  upon  taxing 
to  leave,  without  making  any  attempt  to  unload  any  of  its 
cargo,  the  plane  was  boarded  by  customs  agents  who  found  the 
marijuana.  The  pilot  and  copilot  were  charged  with  violations 
of  importation  of  marihuana  and  possession  with  intent  to 
distribution  of  said  illegal  substance. 

Using  by  analogy  cases  of  cargo  maritime  vessels  in  route 
from  England  to  Canada  during  the  Liquor  Prohibition  Era 
landing  in  distress  in  the  northeastern  section  of  the  United 
States,  the  Circuit  Court  held  that  customs  agents  did  not 
have  a  right  to  search  and  seize  cargo.  No  attempt  was  made 
to  off-load  from  the  plane  cargo  or  passengers  and  the  plane 

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was  only  pursuing  an  emergency  refueling  further  the  plane  was 
complying  with  its  intent  to  depart. 

Although  the  reporting  by  West  Publishing  of  this  case 
indicates  that  the  trial  Judge  was  Jose  V.  Toledo  erroneously; 
the  case  was  heard  by  visiting  Judge  Murray.  Judge  Jose  Toledo 
sat  on  the  prior  to  trial  hearing  of  suppression  of  evidence. 

The  undersigned  handled  the  trial  (2  days)  and  the  appeal 
to  the  Circuit  Court.  Counsel  for  the  Attorney  General  was 
Jorge  Rios  Torres,  Esq.  who  is  no  longer  in  Puerto  Rico 
assigned  to  the  office  of  the  Attorney  General  in  Washington 
D.C. 


I.  JRT  V.  P.R.  TELEPHONE  COMPANY,  107  D.P.R.  76  (1978) 

This  case  involves  the  enforcement  of  an  arbitration 
award  at  the  Puerto  Rico  Labor  Board.  The  decisions  of  the 
Labor  Board  are  appealable  to  the  Supreme  Court  of  Puerto 
Rico.  (Since  this  case  is  published  officially  in  Spanish  an 
official  translation  is  enclosed  as  Exhibit  III.) 

The  undersigned  represented  the  Puerto  Rico  Telephone 
Company  both  at  the  Labor  Board  and  at  the  Supreme  Court.  The 
underlying  arbitration  case  was  tried  by  other  prior  counsel 
of  the  Telephone  Company. 

Puerto  Rico  Labor  Relations  Law  and  federal  labor 
relations  law  favor  the  rapid  disposition  of  unfair  labor 
practices.  In  Puerto  Rico  pursuant  to  the  case  of  Buena  Vista 
Dairy  v.  JRT,  94  D.P.R.  624  (1967),  it  was  established  that  a 
reasonable  time  to  file  cases  pursuant  to  arbitration 
procedures  that  had  no  specific  terms  was  six  months. 
Notwithstanding  the  above,  there  was  an  old  case  in  Puerto 
Rican  Jurisprudence,  Junta  v.  Long  Construction  Co.,  73  D.P.R. 
252  (1952),  that  held  that  arbitration  awards  could  be 
enforced  within  a  period  of  fifteen  years. 

The  instant  case  reversed  Junta  v.  Long,  supra,  in  that 
henceforth  arbitration  awards  must  be  enforced  in  a  reasonable 
period  of  around  six  months. 

Opposing  counsel  was  counsel  for  the  P.R.  Labor  Board 
Jose  Velaz  Ortiz.  He  is  now  in  private  practice.  His  telephone 
number  is  (809)  767-7911.  Cond.  Midtown  Suite  B4,  Muftoz 
Rivera  421,  Hato  Rey,  PR   00918. 

According  to  Shephard's  P.R.  Citations  this  case  has  been 
latter  cited  at  least  ten  times  by  the  Supreme  Court  of  P.R. 
and  by  federal  courts  in  P.R. 


15 


76 


J.    ROMAN  CRUZ  V.  DIAZ  RIFAS,  113  D.P.R.  500  (1982) 

This  is  a  leading  case  in  Puerto  Rico  Law  involving 
judicial  conduct  of  a  trial  judge  in  signing  without  proper 
analysis  a  proposed  Opinion  and  Order  prepared  by  one  of  the 
litigants.  (Since  this  case  is  published  in  the  Spanish 
language  an  official  translated  opinion  is  enclosed  as  Exhibit 
IV.) 

The  undersigned  handled  this  case  as  co-counsel  together 
with  attorney  Jose  A.  Fuste,  now  U.S.  Federal  District  Judge. 
The  case  was  referred  originally  to  the  firm  for  trial  by 
attorney  Jose  A.  Fuste  due  to  the  labor  expertise  of  the  firm 
of  Laffitte  &  Dominguez. 

The  case  involved  a  wage  and  hour  claim  together  with  a 
severance  claim  filed  at  the  highest  trial  court  level, 
Superior  Court.  The  undersigned  represented  the  employer.  As 
noted  by  the  Supreme  Court,  the  allegations  of  the  complaint 
hinted  that  plaintiff  would  not  prevail  in  the  wage  and  hour 
overtime  complaint  because  he  was  an  exempt  foreman,  and  would 
not  prevail  in  the  severance  claim  because  the  business  was 
forced  to  close  due  to  valid  economic  reasons. 

Prior  counsel  in  the  case  had  filed  a  motion  requesting 
extension  of  time  without  swearing  the  same  which  under 
Puerto  Rican  Labor  Law  is  insufficient.  Notwithstanding,  the 
firm  of  Laffitte  &  Dominguez  retained  after  the  motion  of 
extension  of  time  on  the  14th  of  December  1981,  sent  via  mail 
an  answer  to  the  complaint  prior  to  plaintiff's  request  of 
default  on  the  15th  of  December,  1981.  An  unsuccessful 
personal  filing  attempt  had  been  made  by  the  firm  of  Laffitte 
&  Dominguez  to  file  the  answer  to  the  complaint  on  December 
14,  1991  in  Utuado,  a  town  located  in  the  middle  of  the 
countryside  of  Puerto  Rico,  where  the  complaint  was  filed.  The 
failure  to  personally  file  was  due  to  a  flooding  that  occurred 
in  Puerto  Rico  that  affected  access  to  Utuado.  The  answer  to 
the  complaint  was  filed  on  the  17th  of  December,  1981. 

Six  months  elapsed  before  the  Trial  Judge  responded  to 
all  pending  matters.  The  court  had  pending  the  following:  (1) 
a  Motion  seeking  extension  of  time  (2)  Motion  informing  new 
legal  representation  (3)  Motion  requesting  default  (4)  Answer 
to  complaint  (5)  Motion  in  opposition  to  default. 

On  June  30,  1982  the  court  notified  a  Judgment  favoring 
plaintiff  dated  December  10,  1981  of  $44,892.00  and  $10,000.00 
in  attorneys'  fees.  In  said  judgment  the  court  describes 
documents  that  had  not  yet  been  filed  in  court  by  plaintiff. 

The  Supreme  Court  reversed  the  judgment  finding  that 
defendant  had  acted  diligently  in  attempting  to  timely  file  an 

16 


77 


answer  and  admonished  the  trial  court  for  signing  a  Proposed 
Judgment  Order  without  making  a  proper  analysis  of  said 
j  udgment . 

After  the  reversal,  the  trial  judge  was  transferred  and 
he  resigned  shortly  thereafter. 

The  undersigned  was  trial  counsel  and  co-counsel  with 
Jose  A.  Fuste  at  the  Supreme  Court  Proceedings.  The  telephone 
number  of  U.S.  Federal  Judge  Jose  A.  Fuste  is  (809)  766-5780. 
The  address  of  the  Federal  Court  is  U.S.  District  Court  for 
Puerto  Rico,  Room  150  Federal  Building,  Carlos  Chard6n  Avenue, 
Hato  Rey,  PR  00918-1767. 

Counsel  for  the  opposing  party  was  attorney  Luis  A. 
Torres  Rodriguez,  Telephone  (809)  894-1527.  Box  827,  Utuado, 
PR   00641. 

This  case  according  to  Shephards  P.R.  has  been  cited  at 
least  eleven  times  by  the  Supreme  Court  in  latter  decisions 
and  P.R.  federal  courts  after  issuance  of  the  original 
opinion. 

19.  Legal  Activities:  Describe  the  most  significant  legal 
activities  you  have  pursued,  including  significant  litigation 
which  did  not  progress  to  trial  or  legal  matters  that  did  not 
involve  litigation.  Describe  the  nature  of  your  participation 
in  this  question,  please  omit  any  information  protected  by  the 
attorney-client  privilege  (unless  the  privilege  has  been 
waived.) : 

The  undersigned  has  been  private  counsel  on  constitutional 
matters  that  did  not  involve  litigation  for  three  Puertorrican 
governors  that  support  statehood  for  Puerto  Rico.  The 
undersigned  represented  governor  Luis  A.  Ferre  in  the  early 
nineteen  seventies,  governor  Carlos  Romero  Barcel6,  now  Puerto 
Rico  Resident  Commissioner,  during  the  late  nineteen  seventies 
and  early  eighties  and  now  current  governor  Pedro  Rossello 
Gonzalez.  Important  constitutional  issues  between  the  governor 
and  the  legislature  and  the  judicial  branch  have  been 
consulted  with  the  undersigned. 

The  undersigned  was  recently  appointed  by  the  Governor  to  an 
executive  committee  charged  with  the  responsibility  of 
proposing  a  reform  of  the  judiciary  in  Puerto  Rico.  The 
members  of  this  committee  included  the  Governor  of  Puerto 
Rico;  the  Chief  Justice  of  the  Supreme  Court;  the  President  of 
the  Senate;  the  Speaker  of  the  House  and  another  practicing 
attorney. 

The  committee  made  a  recommendation  to  the  legislature  on  a 
Judicial  Reform  Law  which  was  eventually  adopted.  In  essence, 

17 


78 


the  Judicial  Reform  Law  consolidates  existing  trial  courts  and 
establishes  a  Court  of  Appeals.  The  law  affords  litigants  to 
appeal  hitherto  available  only  in  criminal  cases. 

Although  the  support  for  the  law  eventually  enacted  was  not 
unanimous,  the  recently  created  right  to  appeal  in  all  cases 
will  be  welcomed  by  litigants  in  Puerto  Rico. 

The  undersigned  has  been  a  lecturer  at  the  invitation  of  the 
P.R.  Bar  Association  and  other  civic  organizations  like  the 
Puerto  Rico  Journalist  Association  on  First  Amendment  and 
labor  law  matters  as  part  of  professional  continuing 
education.  Sharing  my  professional  experience  and  knowledge 
with  others  has  been  one  of  the  most  rewarding  experiences  in 
my  career. 

As  a  management  labor  attorney  the  undersigned  bargains  with 
union  representatives  between  six  to  ten  labor  agreements  per 
year.  Some  years  as  many  as  twelve  labor  agreements  are 
bargained.  It  is  gratifying  that  most  of  the  labor 
negotiations  that  the  undersigned  has  handled  have  resulted  in 
agreements  reached  without  there  being  industrial  strife  among 
the  parties. 


18 


79 


IZ.  FINANCIAL  DATA  AMD  CONFLICT  OF  INTEREST  (PUBLIC) 

1.  List  sources,  amounts  and  dates  of  all  anticipated  receipts 
from  deferred  income  arrangements,  stock,  options, 
uncompleted  contracts  and  other  future  benefits  which  you 
expect  to  derive  from  previous  business  relationships, 
professional  services,  firm  memberships,  former  employers, 
clients,  or  customers.  Please  describe  the  arrangements  you 
have  made  to  be  compensated  in  the  future  for  any  financial 
or  business  interest. 

I  am  the  Senior  Partner  in  Dominguez  &  Totti  Law  Offices; 
should  I  be  appointed  I  shall  resign  to  the  Partnership.  I 
have  also  in  excess  of  $600,000.00  accumulated  under  the 
Pension  Plan  of  Dominguez  &  Totti.  Should  I  be  appointed 
said  income  is  to  be  distributed  to  me. 

2.  Explain  how  you  will  resolve  any  potential  conflict  of 
interest,  including  the  procedure  you  will  follow  in 
determining  these  areas  of  concern.  Identify  the  categories 
of  litigation  and  financial  arrangements  that  are  likely  to 
present  potential  conflicts-of-interest  during  your  initial 
service  in  the  position  to  which  you  have  been  nominated. 

There  are  no  potential  conflicts  of  interest  foreseen  at 
this  time.  However,  should  any  arise  it  will  be  resolved  in 
proper  manner  assuring  that  even  the  slightest  appearance  of 
impropriety  is  avoided.   I  shall  follow  the  guidelines  of 
the  Code  of  Judicial  Conduct. 

3.  Do  you  have  any  plans,  commitments,  or  agreements  to  pursue 
outside  employment,  with  or  without  compensation,  during 
your  service  with  the  court?  If  so,  explain. 

No. 

4.  List  sources  and  amounts  of  all  income  received  during  the 
calendar  year  preceding  your  nomination  and  for  the  current 
calendar  year,  including  all  salaries,  fees,  dividends, 
interest,  gifts,  rents,  royalties,  patents,  honoraria,  and 
other  items  exceeding  $500  or  more  (if  you  prefer  to  do  so 
copies  of  the  financial  disclosure  report,  required  by  the' 
Ethics  in  Government  Act  of  1978,  may  be  substituted  here.) 

See  attached  Financial  Disclosure  Report. 

5.  Please  complete  the  attached  financial  net  worth  statement 
in  detail  (Add  schedules  as  called  for) . 


80 


See  enclosed  Financial  Statement  from  outside  auditors  plus 
1992  audited  Financial  Report  (in  the  Spanish  language). 

Have  you  ever  held  a  position  or  played  a  role  in  a 
political  campaign?  If  so,  please  identify  the  particulars 
of  the  campaign,  including  the  candidate,  dates  of  the 
campaign,  your  title  and  responsibilities: 

No. 


81 


III.  GENERAL  (PUBLIC) 


An  ethical  consideration  under  Canon  2  of  the  American  Bar 
Association's  Code  of  Professional  Responsibility  calls  for 
"every  lawyer,  regardless  of  professional  prominence  or 
professional  workload,  to  find  some  time  to  participate  in 
serving  the  disadvantaged".  Describe  what  you  have  done  to 
fulfill  these  responsibilities,  listing  specific  instances  and 
the  amount  of  time  devoted  to  each. 

During  the  early  years  of  my  professional  career  1970-1972  the 
undersigned  was  a  participant  in  a  legal  assistant  program 
sponsored  by  the  Puerto  Rico  Bar  Association  which  provided 
free  of  costs  legal  assistance  to  the  island's 
underprivileged.  I  was  assigned  one  evening  every  two  weeks 
for  several  months  to  provide  services  for  citizens  residing 
in  low  income  public  housing.  We  were  also  appointed  by  the 
Federal  Court  from  1975  to  1980  to  defend  indigents  in  several 
criminal  cases.  U.S.  v.  Ralston  Douglas  Nunez.  511  F.2d  871 
(1st  Cir.  1975)  .  Also  early  in  my  career  we  were  several 
times  court  appointed  to  defend  social  security  claims  of  the 
indigent. 

I  currently  provide  ad  honorem  counseling  for  Centros  Sor 
Isolina  Ferre,  a  religious  organization  providing  community 
services  to  the  poor  and  underprivileged  in  the  Ponce  area  of 
Puerto  Rico.  Centros  Sor  Isolina  Ferre  is  well  known  in 
Puerto  Rico  for  working  in  the  prevention  of  youth  drug 
addiction  and  juvenile  delinquency  in  the  underprivileged 
communities  of  Puerto  Rico. 

The  American  Bar  Association's  Commentary  to  its  Code  of 
Judicial  Conduct  states  that  it  is  inappropriate  for  a  judge 
to  hold  membership  in  any  organization  that  invidiously 
discriminates  on  the  basis  of  race,  sex,  or  religion.  Do  you 
currently  belong,  or  have  you  belonged,  to  any  organization 
which  discriminates —  through  either  formal  membership 
requirements  or  the  practical  implementation  of  membership 
policies?  If  so,  list  with  dates  of  membership.  What  you  have 
done  to  try  to  change  these  policies? 

No. 

Is  there  a  selection  commission  in  your  jurisdiction  to 
recommend  candidates  for  nomination  to  the  federal  courts?  If 
so,  did  it  recommend  your  nomination?  Please  describe  your 
experience  in  the  entire  judicial  selection  process,  from 
beginning  to  end  (including  the  circumstances  which  led  to 
your  nomination  and  interviews  in  which  you  participated) . 


82 


There  is  no  selection  commission  in  Puerto  Rico  for  vacancies 
in  the  federal  judiciary.  I  was  advised  by  Governor  Pedro 
Rosselld  that  prior  to  recommending  the  undersigned  to 
President  Clinton  for  one  of  the  vacancies  in  the  federal 
judiciary  in  Puerto  Rico  he  consulted  with  practicing  lawyers, 
judges  and  civil  leaders.  After  Governor  Rosselld' s 
recommendation  was  submitted  to  President  Clinton,  I  received 
a  letter  from  the  Associate  Counsel  of  the  President  including 
several  forms  to  be  completed  and  advising  of  being  considered 
for  a  potential  nomination.  After  the  forms  were  completed  I 
was  interviewed  on  the  phone  on  several  occasions  by  the 
Counsel  to  the  Deputy  Attorney  General  and  subsequently  was 
interviewed  in  Washington  D.C.  by  the  Assistant  Attorney 
General  and  the  staff  of  said  office.  Subsequently  I  was 
interviewed  by  agents  of  the  Federal  Bureau  of  Investigations. 
After  completing  American  Bar  Association  forms,  I  was 
interviewed  in  Philadelphia,  Pennsylvania  by  the  Bar 
Association's  representatives  to  determine  qualification  as  a 
potential  nominee.  I  was  nominated  shortly  thereafter  in  June 
21,  1994  by  President  Clinton. 

4.  Has  anyone  involved  in  the  process  of  selecting  you  as  a 
judicial  nominee  discussed  with  you  any  specific  case,  legal 
issue  or  question  in  a  manner  that  could  reasonably  be 
interpreted  as  asking  how  you  would  rule  on  such  case,  issue, 
or  question?  If  so,  please  explain  fully. 

No. 

5.  Please  discuss  your  views  on  the  following  criticism  involving 
"judicial  activism". 

The  role  of  the  Federal  judiciary  within  the  Federal 
government,  and  within  society  generally,  has  become  the 
subject  of  increasing  controversy  in  recent  years.  It  has 
become  the  target  of  both  popular  and  academic  criticism  that 
alleges  that  the  judicial  branch  has  usurped  many  of  the 
prerogatives  of  other  branches  and  levels  of  government.  Some 
of  the  characteristics  of  this  "judicial  activism"  have  been 
said  to  include: 

a.  A  tendency  by  the  judiciary  toward  problem-solution 
rather  than  grievance-resolution; 

b.  A  tendency  by  the  judiciary  to  employ  the 
individual  plaintiff  as  a  vehicle  for  the 
imposition  of  far-reaching  orders  extending  to 
broad  classes  of  individuals; 

c.  A  tendency  by  the  judiciary  to  impose  broad, 
affirmative  duties  upon  governments  and  society; 


83 


d.  A  tendency  by  the  judiciary  toward  loosening 
jurisdictional  requirements  such  as  standing  and 
ripeness ;  and 

c.  A  tendency  by  the  judiciary  to  impose  itself  upon 
other  institutions  in  the  manner  of  an 
administrator  with  continuing  oversight 
responsibil it ies . 

Under  the  Constitution  federal  courts  must  decide  "cases 
and  controversies".  The  basic  function  of  the  judicial  branch 
is  that  of  adjudicating  specific  controversies.  Sometimes  the 
nature  of  those  cases  and  controversies,  go  beyond  the 
specific  interest  of  the  litigants  and  thereby  have  far 
reaching  consequences.  The  vision  of  the  federal  judiciary  of 
the  undersigned  is  that  the  judiciary  should  solve  the 
specific  questions  possed  by  the  litigants  involved.  The 
undersigned  does  not  favor  the  federal  judiciary  to  be  active 
in  problem  solutions  as  opposed  to  grievance  solutions  unless 
explicitly  mandated  by  congressional  legislation.  The 
resolution  of  social  problems  is  a  policy  matter  entrusted  to 
the  legislative  and  executive  branches  of  the  government. 
Broad  reaching  orders  extending  to  broad  classes  should  be  the 
exception  and  is  justified  only  when  a  matter  constitutes  a 
fundamental  constitutional  right  which  may  affect  a  broad 
class  of  individuals  that  may  properly  be  represented  at  the 
litigation.  Broad  orders  against  the  government  should  not  be 
the  general  rule  unless  it  is  a  matter  of  a  fundamental 
constitutional  right  or  a  crucial  civil  right.  Considering 
that  new  federal  laws  are  constantly  enacted  creating  new  and 
diverse  federal  causes  of  action  there  should  not  be  a 
loosening  of  standing  and  ripeness  jurisdictional 
requirements.  Further,  at  the  district  court  level  justices 
are  bound  by  precedent  and  therefore  the  district  court  may 
not  create  standards  more  stringent  nor  loosen  the 
constitutional  standard.  Ordinarily  legal  precedents  are  not 
established  at  the  trial  level  but  at  circuit  and  supreme 
court  appellate  levels. 


84 


INDEX  TO  EXHIBITS 


1.  By  Laws  submitted  in  relation  to  answer  to  Part  I  question 
number  10,  Exh.  I 

2.  Documents  related  to  Part  I  question  number  12,  Exh  II 

3.  Copy  of  case  submitted  in  relation  to  answer  to  Part  I 
question  number  18(1),  Exh.  Ill 

4.  Copy  of  case  submitted  in  relation  to  answer  to  Part  I 
question  number  18(J),  Exh.  IV 

5.  Documents  related  to  Part  II,  Exh.  V 


85 

FINANCIAL  STATEMENT 
NET  WORTH 


Provide  a  complete,  current  financial  net  worth  statement  which  itemizes  in  detail  all  assets  (including  bar 
accounts,  real  estate,  securities,  trusts,  investments,  and  other  financial  holdings)  all  liabilities  (including  debt 
mortgage*,  loans,  and  other  financial  obligations)  of  yoursell.  your  jpous*.  and  other  Immediate  member*  . 
your  household. 

AS  OF  DECEMBER  31,  1993. 


UABIUTIES 


Ca»h  on  h»nd  and  In  b*"Ki 

U.S.    Covimmint   iwjnor 

BCheduta 
Ud*d   ucu^n-*^  tchedvle 
Unfitted  aeeurlilea — add  eo»adule 
A&eounci  end  note?  receivable; 

Owe  Irorn  iftitim  end  friendl 

Ou«  from  others 

Doubtful 
Rill  term  0"*ned— add  tchtduittl 
ftul  ettjla  mortgagee  receivable 
Autot  and  wher  p«iwii  property 
Cjth  vi'ur — tift  Iniunnca 

Ot*er   IlicU— Jttmlic 

IPft   ftrrniinfa 


rtotaa  ptyebla  to  bentj.   tecured 
Notes  parioU*  to  tento— vmecureg 
HolM  para  ft  to  rellUvex 

Notes  payable  to  other* 

Accounts  and  fc'iii  due 

Unpaid  Interna  tii 

Cnr>e,  unpaid  Ui  end  Interest 

Rail  Mm  morrfifei  {unbie— add 
ached  wta 

C»\«tt«i  mortt<|ei  and  other  iim, 
payable 

Oilier  debts— (Urntla: 


Total  tlabititiai 

Hat  worth 

Total  litblllUea  md  n*t  wenh 


CENERAl  INTORMATtON 


Aa  endorser,  comaker  or  guarantor 
On  lutes  or  convicts 
Lestl  Claims 

vmon  tor  Tedaral  Income  Tti 
Other  epeclel  debt 


Are  eny  ajj-rtj  pledged}  <Add  ached 

"'•>  Schedule   12 

An  you  defendant  In  any  wits  or 

Itj. i   actlontf 

Have  you  ever  taken  bankruptcy? 


86 


«HSON  JQHIS  vUMTAHV 


,rr. 


W± 


87 


FINANCIAL  DISCLOSURE  REPORT     ^a?^25S 


Uio  Stblca 
Xl.  I.  le. 
"     Itlt 

(J    U.t.C.i.    iff.    «,    11101-11]) 


.   Poxaoo  aoportlog.   (Loot  mm,    fir,t,   aldd'lo  ioltl.l) 

DCMDGJEZ,  DANIEL  R. 


t.  Tltlo  lArllclo  III  'udo.i  I 
oooior  wtui;  Mogl 
roll-  or  (trl-tl»l! 


•■   indict.  «etlvo  or 

iuiu  Judgoa   ledlc.t* 


FEDERAL  DISTRICT  COURT  JUDGE 


2.  Court  or  Orgaalsatloa 

UNITED  STATES  DISTRICT  COURT 


S.   Roport  Typo  (chock  appropriate  typo) 
»      ■oauutlon.    Data     6-?  1.0,4 

X      Iiltlll        JUiflaal        riul 


J.  Doto  of  koport 

JUNE  27,1994 


<.   ILaportlag  Period 

Jan.  1,  1994 
May  27,  1994 


t,    Ch*ml*Tn   or  Of flea  XdOr»i« 


Office:  Ponce  de  Le6o  416 
Suite  1200,  Hato  Rey,  PR  00919 


On  za»  &*•!■  of  too  lafonatloa  coatalaad  la  this  Raport,   It 

la,    id  ay  oplDloo,   la,  coapllaaca  vita  •ppllcaalo  lava  aad 

regulation*  _ — 


Havlaviao  Offlear   tlgrutara 


IMPORTANT   NOTESi     The  instructions    accompanying    this  form  must  be  followed.    Complete  all  parti, 
checMhaj  the  NONE  box  for  each  section  where  jon  hare  no  reportable  fnfbrnatfcm.   55gn   on  last  page. 


POSITIONS.     (Reporting  individual  only;  sec  pp.  7-S  of  Instructions.) 


3 


POSITION 

NONE      (fo  roportaslo  poamooa) 


PARTNER 

SECRETARY 

SECRETARY 


NAME  OF  ORGANIZATION/ENTITY 


DOMINGUEZ  &  TOTTI  (LEGAL  PARTNERSHIP) 

STANFORD  KLAPPEr  &  ASSOCIATES, INC. 

PUERTO  RICAN  CEMENT  COMPANY,  INC. 


SECRETARY 
SECRETARY 


THE  PONCE  MUSEUM  OF  ART 
MEDIAFAI.  INC. 


I.    AGREEMENTS.     (Reporting  individual  only,  sec  p.  8-9  of  Instructions.) 
DATE  PARTIES  AND  TERMS 


NONE       Ho  roporublo  agro 


II.     NON-INVESTMENT  INCOME.     (Reporting  Individual  aw)  spouse;  see  pp.  9-12  of  Instructions.) 

PATE  SQVRCE  AND  TYP E  GROSS  INCOME 

(Honoraria  only)  (yours,  not  spouse's) 


_] 


NONE       (to  raportaala  doc- leva*  taaot  lacoa*)) 


lifi 


1993 


Compensation  far  Prnfemlonal  Services  ao 
Partner  of  Domfnguez  &  Totti 

.Conference  _ 
supreme  Court  of  Puerto  Rico 


enjULt 


Xftn 


at  ion   for 
JiMsTciaTc 
Court  of  ] 


Office  ofthe  Secretar  iat, 


$234,383, J} 
$  45,357.00 


4 1994 


Compensation  for  Professional  Services  as 


1994 


(Five  Months) 

ompensation  for  Services  ( Spouse 1  as  Director »  .anon  -i* 

t   tne  Judicial  Conference  Office  of  the  Secretariat, 


Partner  of  Domlnouez  •  Totti 


$105,703.02 
$ 


7 


s 


Supreme  Court  of  Puerto  Rico    (Five  Months) 


88 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


P*m  of  r*r»oa  teportlaa. 

DOMINGUEZ,    DANIEL  R. 


Bat*  of  Boson 

JUNE  27,    1994 


/.    REIMBURSEMENTS  and  GIFTS  -  transportation,  lodging,  food,  entertainment. 

(Include*  IboM  to  spouse  ■do'  dependent  children:  use  the  parentheticali  *(S)'  and  '(DC)'  to  Indicate  reportable 
reimbursement*  and  gifts  received  by  •pouse  and  dependent  children,  respectively.   See  pp. 13-1$  of  Instructions.) 


3 


SOURCE 


piSCRPTtON 


NONE      (Bo  such  rsportsols  rslaburssBOSts  or  gifts) 

Exempt 


V.     OTHER  GIFTS.     (Include*  tho«e  to  spouse  and  dependent  children;  use  the  parenthetical*  *(S)'  and  '(DC)*  to 
Indicate  other  gifts  received  by  spouse  and  dependent  children,  respectively.  See  pp.  15- 16  of  Instructions.) 

SOURCE  DESCRIPTION  VALUE 

I  NONE      (Bo  neb  rsportsbls  gift*) 

Exempt 


$. 
$. 
$. 
S 


VI.     LIABILITIES.     (Include*  those  of  spouse  and  dependent  children;  Indicate  where  applicable,  person  responsible 
for  liability  by  using  the  parenthetical  *(S)'  for  separate  liability  of  spouse,  '(J)'  for  Joint  liability  of  reporting 
Individual  and  spouse,  and '(DC)'  for  liability  of  a  dependent  child.  See  pp.l£U  oCInstructlons.) 


□ 


CREDITOR 
NONE      (Bo  rspartsbls  llskllltlss) 

Popular  Leasing  (J) 


DESCRDTION 


Automobile  (Spouse) 


VALUE   CQDE« 


:.— ■■ 


•  tse.tei  to  iioo.oos      a  •  1100,001 1»  tiso.ooo 


.A 


»  •  lis.ooo  or  ims       "     «  •  »is,ooi  to  ijo.ooo  ,.  '■  ■■".;*  -  t»,««i  to  tioo.ooo 

I  •  I JS0.001  to  IJOO.OOO      0  -  IS00.001  to  11,000,000       t  •  acts  UMs  Sl.OOO.OOO 


89 


FINANCIAL  DISCLOSURE  REPORT  (coofd) 


ff4M  of  rorooo  teportlM 

DCMDOJEZ,  DMOH.    R. 


Data  of  lUport 

JUNE  27,  1994 


I.    INVESTMENTS  and  TRUSTS  -  income,  value,  transactions,    (includes  those  or  mmm 

■Ad  dependent  children;  see  pp.  18-27  of  Instructions.) 


D**crlptloa  of  JUaata 

(lAclHlag  truat  umu) 

durlog 

9reai 
at  1 

e. 

valoo 
mo  of 

— JTJ — 

0. 
TruMstloaa  daring  nportlaa  poxlod 

ft* 

rHtf 

WB 

»»1U) 

til.. 

ft 

raai  aiacjoaur* 
truhotloa) 

"""1       NONE     (»o  r»port*bla 
iflco— ,   aaaata,  or 
1             traaaaotlooa) 

EXBtfT 

LAW  FIRM  PENSION  PLAN 

0 

T 

CHASE  MANHATTAN  hank 
S/A  #  707-008140-6 

j 

T 

FIRST  FEDERAL  SAVINS 
«^a  *  is_rvi-O0?0on'»7S 

J 

T 

CN^gCJyOC^Kr  (OASE) 

j 

T 

^Sc£^<™> 

j 

T 

PARTNERSHIP  VALUE  IN  THE 
rOM  QT  KMINGUEZ&  IUIT1 

M 

0 

U 

e 

.1 

3 

a 

14 

IS 

IS 

it 

IS 

It 

M 

1  laooaa/Oua  Coomi      i-u,ooo  oz  leu               »-ji.ooi  to  w.JOo                c-si.soi  to  s.oea                 d-«  mi  to  sis  ooo 

j  Tola*  coomi                  JM19.000  or  Ion               MU.&H  U,  Isi.Uo             I«Ho.MI  to  llitToM      — B-iToi  KPta TB  Mo — 

j  it  ^'iiiHiJ'1  -rci"*-001  w  ,50*wo  ?M»oo.ooi  jo't,:ooo.ooo  p-io*;  <*.. i?:s»°£o     "'*>•«»  *•  «w.w*^ 

J  Tola*  Xotkoo  coomi      g-AfpriiMl                             Moot     ro*I  o.uio  only       (■Uinuw'  <-"«"« ^ 

{•«•  eel.  a)               u-sook  «i1m                      v-otbor                                  v-iotloota*                                     !•       . 

90 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


Vaaa  of  Veraoa  Reporting 

DOHINCUEZ,  DANIEL  R. 


Data  of  topon 

JUNE  27,    1994 


II.    ADDITIONAL  INFORMATION  or  EXPLANATIONS.    (fata**  put  <x  Report.) 


<.    CERTIFICATION. 

In  compliance  with  the  provisions  of  28  U.S.C  8  455  and  of  Advisory  Opinion  No.  57  of  the  Advisory  Committee  on 
ididal  Activities,  and  to  the  best  of  my  knowledge  at  tbe  time  after  reasonable  inquiry,  I  did  not  perform  any  adjudicatory 
action  in  any  litigation  during  tbe  period  covered  by  this  report  in  which  I,  my  spouse,  or  my  minor  or  dependent  children 
id  a  Bnaadai  Interest,  as  defined  in  Canon  3C(3)(c),  in  the  outcome  of  such  litigation. 

I  certify  that  all  information  given  above  (including  information  pertaining  to  my  spouse  and  minor  or  dependent  children, 
any)  is  accurate,  true,  and  complete  to  the  best  of  my  knowledge  and  belief,  and  that  any  information  not  reported  was 
iihbeld  because  it  met  applicable  statutory  provisions  permitting  non-disclosure. 

I  further  certify  that  earned  income  from  outside  employment  and  honoraria  and  the  acceptance  of  gifts  which  have  been 
rported  are  in  compliance  with  tbe  provisions  of  5  U.S.CA.  app.  7,  8  501  et  seq.,  5  U.S.C  8  7353  and  Judicial  Conference 
gula  lions. 


ignature  , 


~5ZZ-A 


Due 


i/*p/9y 


IOTE:     ANY  rNDIVTDUAL  WHO  KNOWINGLY  AND  WILFULLY  FALSIFIES  OR  FAILS  TO  FILE  THIS  REPORT 
1AY  BE  SUBJECT  TO  CIVIL  AND  CRIMINAL  SANCTIONS  (5  U.S.CA  APP.  6,  8  104,  AND  18  U.S.C  8  1001.) 


FILINO  INSTRUCTIONS: 

Mail  signed  original  and  3  additional  copies  to: 

Judicial  Ethics  Committee 

•    -.,:    ■.  ■■:                 i 

Administrative  Office  of  the 

United  States  Courts                 £>r*. 

Washington,  DC  20544 

'   .  ',;'            ' '    .    < 

K  *  V     »  5        .        '  '■»    v 

.>-.'  ...  • 

91 

AUDITED  FINANCIAL  STATEMENT  DATED  12-92  (IN  SPANISH) 


LCDOS.  DANIEL  ».  DOMINOUEI  T 

CARMEN  IRIIARRT  DE  DOMINQUEl 

ESTADO  DE  CONDICION  FINANCIERA 

31  DE  DICIEMBRE  DE  1992 


Roberto  F.  FoktuSo 

C'KRTIKIKIl  Pl'HIJC  AtfOlNTAXT 


92 

LCDOfl.    DAMIBL   K.    DOMIMOUBI   T 
CMMM    IWI'AIWT   Dl   DOMIMOOll 

kstado  de  common  fimamcikra 

31    DK   DICIKMBRE   Dl    1992 
CQMTEHIDO 


Reports  Compilado  del  Contador 1 

Estado  de  Condicidn  Pinanciera 2-3 

Not  as  al  Estado.  de  Condicidn  Financiers 4-7 


Roberto  F.  FortuSo 

Ckrtikikii  Pi 'Bi.it1  Acmm'xtast 


93 


t'KKTIKlKU  Pi  BLIC  AtTOfXTAXT 

I.VKIil    riUIMK    VWIIJMM. 

srrrti  m 

MM  I  I1KOH.V&  I*  tMTllHHD 


Tti.  iao»t  m«-a»rj 
r\x  man  m  nerr 


REPORTE  COMPILADO  DEL  CONTADOR 


Lcdos.  Daniel  R.  Doalnguei  y 
C«nMn  Irizarry  de  Dominguez 


Be  coopilado  el  estado  de  condicidn  financlera  adjunto  de  loe 
Lcdoe.  Daniel  R.  Dominguez  y  Carmen  Irizarry  de  Domlnguez  al  31  de 
diciembre  de  1992.  Esta  compilacidn  fue  hecha  de  acuerdo  con  las 
normas  sstablecidas  por  el  Institute-  Americano  de  Contadores 
poblicos  Autorizados. 


La  compilacidn  de  unos  estados  financieros  consists  en,  y 
esta  limitada  a,  presenter  en  forma  de  estados  financieros, 
informacidn  que  es  representaci6n  de  los  Lcdos.  Daniel  R.  Dominguez 
y  Carmen  Irizarry  de  Dominguez.  Ho  be  auditado  o  revisado  los 
estados  de  coDdici6n  financlera  que  se  aconpafian  y  por  tanto,  no 
expresoopinidn  ni  ningtln  otro  tipo  de  seguridad  sobre  los  mismos. 


Roberto  P.  Fortufio 
San  Juan,  P.R. 


El  sello  nomero  1130735 
del  Colegio  de  Contadores 
Poblicos  Autorizados  fue 
adherido  a  la  copia  del 
archivo  de  este  reports. 


16  de  febrero  de  1993 


94 


I^PQg.  DAMIBL  K.  P0HIMQUB1  I 

KBTADO  M  COMDICIOM  riWAMCIBRA 
31  DB  DICIEMBRB  DE  1992 

(Ref Urate  al  Report*  Coapilado  del  Contador) 


ACTIVO 

Efectivo  $    39,045 

Valor  en  Efectivo  de  Poliza  de  Seguro 

de  Vida  (Mota  2)  17,000 

Cuentas  de  Retiro  Individual  47,808 

Benef icios  Acumuladoe  en  Plan  de  Pension  (Not a  4)  567,295 

Inversidn  en  Bienee  Ralces  (Note  5)  50,000 

Participacidn  en  el  Activo  Heto  de  la  Sociedad 

Profesional  Dominguez  k   Totti  (Mota  6)  183,420 

Residencia  (Hota  1)  450,000 

Eobarcaciones  (Nota  1)  70,000 

Mobiliario  (Mota  1)  35,000 

Efectos  personales  y  joyas  (Hota  1)  75,000 

Objetos  de  Arte  (Mota  1)  15.000 

$  1,549,568 


Las  notas  que  se  acoopafian  son  parte  integrante  de  este  estado  de 
condicion  financiera  sin  auditar. 


Roberto  F.  FortuSo 

CKRTIKIKII  Pl-HI.lt'  At'fOlNTANT 


95 


LCDOS.    DAMIEL   R.    DOMIMQUgt   T 

CUBm  iriiarrt  pi  BflMUMBBI 

1STAD0  DE   COHDICIOM  FINANCIERA 
31   DE    DICIEMBRE   DE    1992, 

(Refiirase  al  Report*  Conpilado  del  Contador) 


PASIVO 


Obligaciones  por  Pagar  (Nota  7)  $    85,563 

ESTIMADO  DE  CONTRIBDCION  SOBRE  INGRESOS  SOBRE 
LAS  OIFERENCIAS  ENTRE  EL  VALOR  CORRIEMTE 
ESTIMADO  DE  LOS  ACTIVOS  Y  SOS  BASES 
CONTRIBUTIVAS  (Nota  8)  186,143 

CAPITAL  NETO  1.277.862 

$  1,549,568 


Las  notas  que  se  aconpafian  son  parte  integrante  de  este  estado  de 
condicion  flnanciera  sin  auditar. 


Roberto  F.  FortuSo 

C'KKTIKIKI)  Pl'HI.IC  ACCOIXTAXT 


96 


T^enOfi.  DAMIKL  R.  DOMIMQUBt  T 

CABMM  IRHAKRT  PI  DOMIMOUE1 

MOTAS  AL  ESTADO  DB  COKPICIOM  PIMAHCIERA 

?1  DE  DICIEMBRE  PE  1992 


Nota  1    Tnformacion  General 

El  estado  de  condicidn  f  inanciera  que  se  acompafia  incluye 
I08  recur sos  y  obligaciones  de  la  sociedad  de  gananciales 
del  llceDclado  Daniel  ft.  Domlnguez  y  eu  eeposa,  la  Lcda. 
Carmen  Irlzarry  de  Domlnguez.  El  mlsmo  esta  presentado 
a  su  valor  corriente  estimado  usando  el  metodo  de 
acumulacidn.  Los  valores  corrientes  estimados  de  los 
activos  tales  como  la  residencia,  mobiliarlo,  objetos  de 
arte,  embarcaciones,  efectos  personal es  y  joy as  son 
basados  en  la  apreciacidn  personal  del  Lcdo.  Daniel  R. 
Domlguez. 

Hota  2    Valor  en  Efectivo  de  P61iza  de  Seouro  de  Vlda 

Al  31  de  diciembre  de  1992,  el  licenciado  Daniel  R. 
Domlnguez  mantenia  una  poliza  de  seguro  de  vida  con  The 
Manufacturers  Life  Insurance,  Co.  con  una  cubierta  de 
$300,000.  El  valor  de  rescate  de  dicba  poliza  era  de 
$17,000  a  la  fecha  de  estos  estados. 

Nota  3    Cuentas  de  Retiro  Individual 

Las  cuentas  de  retiro  individual  se  mantienen,  en  varias 
in6tituciones  financieras,  todas  localizadas  en  Puerto 
Rico,  con  intereses  que  fluctttan  entre  un  7.0%  y  un 
10.00%  anual. 

Hota  4    Beneficios  Acumulados  en  Plan  de  Pension 

El  valor  corriente  estimado  de  los  beneficios  acumulados 
de  los  licenciados  Daniel  R.  Domlnguez  y  Carmen  Irlzarry 
de  Domlnguez  es  el  precio  de  los  valores  que  componen 
dicho  plan,  determinado  a  la  fecha  del  estado  de 
condicidn  financiera  por  The  Wyatt  Company,  la  casa 
administradora  del  plan. 


Roberto  F.  FortuSo 

CKRTIKIKI)  Pl'BI.K*  Al't'OlNTANT 


97 


Hota  5 


LCDOS.  DAM1EL  R.  DOM I ■ QUE I  T 

CMBBB  IRI1ARRT  Dl  POMIHOUBI 

MOTAS  AL  ESTADO  DB  COWPICIOM  MHAMCIBRA 

31  DE  DICIEMBRB  DB  1993, 

Inversidn  en  Bienes  Ralcea 

Predio  de  terreno  consistente  da  1.45  cuerdas  (1.5 
acres),  localizada  en  Hawk,  Vermont.  Dicha  propiedad  fue 
adquirida  en  el  afio  1976  a  un  costo  de  $35,000.  El  valor 
estimado  en  el  mercado  esta  basado  en  la  apreciacion 
personal  del  licenclado  Domlnguez. 


Hota  6    Pflrticipa.ci$n en   el   Activo Heto de   la   Sociedad 

Profesional  Domlnguez  j  Totti! 

El  licenclado  Daniel  R.  Domlnguez  posee  el  50.5%  de 
participacidn  en  la  sociedad  profesional  que  opera  bajo 
la  razdn  social  Domlnguez  6  Totti.  El  valor  estimado  del 
activo  neto  de  dicha  sociedad  al  31  de  diciembre  de  1992 
se  desglosa  de  la  siguiente  manera: 


Active? 

Efectivo 

Cuentas  por  cobrar  (net as) 

Otras  cuentas  por  cobrar 

Mobil iario  y  equlpo  (neto) 

Plusvalla 

Contribuciones  pre  pagadas 

Gastos  diferidos 


Menos  Pasjvp; 

Cuentas  a  pagar 

Obligacidn  por  pagar  a  socios 

Obligaciones  a  pagar  -  otros 

Contribuciones  patronales  a  pagar 

Contribuciones  diferidas  a  pagar 


Total  de  pasivos  netos 

Participacion  del  Lcdo.  Daniel  R. 
Domlnguez 


$   21,071 

338,992 

3,750 

157,416 

68,657 

2,505 

27,978 

620,569 

8,094 

71,381 

130,672 

570 

46,645 

257,362 

$  363,207 


$  183,420 


Roberto  F.  FortuSo 
Ckrtikiku  Prni.ii"  Aiiwxtant 


98 


LCPOfl.  DAMIKL  R.  DOMIBQUKI  T 

EMBH1  IKIKAURT  DE  DOMIMQUK1 

NOTAS  AL  EfiTADO  DE  COWPICIOM  riMAMCIERA 

31  DE  DICIEMBRE  Pg  1992, 


Hota  7    Qbli9aciones  por  Paaar 

Oblig«ci6n  por  pagar  al  Banco  Popular 

de  Puerto  Rico  #601-224146-600  al 

8.75%  de  interes  anual,  colateralizada 

por  primera  bipoteca  sobre  residencia 

principal,  localizada  en  el  #1662  de 

la  Calle  Jazmln  en  la  Urbanizaci6n 

San  Francisco,  Rio  Piedras,  P.R., 

venciendo  el  1  de  julio  del  2007. 

Dicha  obligacidn  requiere  pagoe 

mensuales  de  principal,  intereses  y 

contribuciones  de  $754.00.  $  54,262 

Obligacion  por  pagar  al  Banco  Popular 
de  Puerto  Rico  #008-36-454357  al  14.45% 
de  interes,  colateralizada  por  velero 
de  36  pies  de  eslora  marca  Beneteau 
modelo  1984,  venciendo  en  el  afio  1999. 
Dicha  obligacidn  requiere  pagos  men- 
suales de  principal  e  interes  de  $537.        31.301 

Total  $  85,563 


Roberto  F.  FortuSo 

CKRTIFIKI*  Pl'Bl.lf  ACI'OINTANT 


99 


LCDOS.  DA* I EL  K.  DOMIMOUBI  X 
CARMBB  IRIIARRT  DB  DOM  I  ■  QUE  t 

NOTAS  AL  ESTAPO  DB  COWDICIOM  FIMAMCIERA 
31  DE  DICIEMBRE  DE  1993 

Hota  8     Estimado  de  Contribucidn  sobre  Ingresos 

Los  valores  corrientes  estimados  de  las  deudas  al  31  de 
diciembre  de  1992,  son  lguales  a  sus  bases  contributivas. 
El  estimado  de  contribucidn  sobre  ingresos  provee  para 
la  cantidad  de  impuestos  que  habrla  que  paqar  si  a  la 
fecha  del  estado  financiero  se  realizara  el  ezceso  de 
valores  corrientes  estimados  de  los  activos  6obre  sus 
bases  contributivas.  Esta  acumulacion  sera  distinta  de 
las  cantidades  de  contribuci6n  sobre  ingresos  que 
eventualmente  se  paguen  debido  al  nomento  y  metodo  de 
disposicidn  final  de  estos  activos.  Ademas,  estae 
cantidades  se  afectaran  por  las  leyes  y  reglamentos 
vigentes  al  momento  de  su  disposicion. 

Los  valores  corrientes  estimados  al  31  de  diciembre  de 
1992,  exceden  sus  bases  contributivas  por  $930,715.  El 
ezceso  de  los  valore6  corrientes  estimados  de  los  activos 
principal.es  sobre  sus  bases  contributivas  son  las 
siguientes: 

Residencia  $  265,000 

Inversi6n  predio  de  terreno  Hawk, 

Vermont  $   15,000 


Participacion  en  Sociedad  Profesional 

Domlnguez  &  Totti  $  83,420 


Benef icios  Acumulados  en  Plan  de 

Pensi6n  $  567,295 


Roberto  F.  FortuAo 

CKRTIKIKU  Pl'Bl.lt'  ACCOIXTANT 


100 


SENATE  JUDICIARY  COMMITTEE 
QUESTIONNAIRE  FOR  JUDICIAL  NOMINEES 


I.   BIOGRAPHICAL  INJORMATION  (PUBLIC) 

Full  name  (include  any  former  names  used.) 

Sarah  Elizabeth  Savoia  Vance 


Address:   List  current  place  of  residence  and  office  address(es). 

Residence:       1821  State  Street 

New  Orleans,  Louisiana  70118 

Office:  Stone,  Pigman,  Walther,  Wittmann  &  Hutchinson 

546  Carondelet  Street 
New  Orleans,  Louisiana  70130 


Date  and  place  of  birth. 

January  16,  1950 

Donaldson ville,  Louisiana 


Marital  Status:   (include  maiden  name  of  wife,  or  husband's  name).  List  spouse's 
occupation,  employer's  name  and  business  address(es) 


Spouse's  Name: 
Spouse's  Occupation: 
Spouse's  Employer: 


Robert  Patrick  Vance 

Attorney 

Robert  Patrick  Vance  is  a  partner  with  Jones,  Walker, 

Waechter,  Poitevent,  Carrere  &  Denegre,  201  St.  Charles 

Avenue,  New  Orleans,  Louisiana  70170 


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Education;   List  each  college  and  law  school  you  have  attended,  including  dates  of 
attendance,  degrees  received,  and  dates  degrees  were  granted. 

Louisiana  State  University 

Degree:    B.A.  in  Political  Science,  1971 
Dates  of  Attendance:    1967-1971 


Nicholls  State  University 

Dates  of  Attendance:    Summer  Session,  1968 

Louisiana  State  University 

Graduate  work  in  Political  Science  during  Summer  Session  and  Fall  Semester  of 
1973. 

Tulane  University  School  of  Law 

Degree:   J.D.  1978 

Dates  of  Attendance:    1975-78 


Employment  Record:  List  (by  year)  all  business  or  professional  corporations, 
companies,  firms,  or  other  enterprises,  partnerships,  institutions  and  organizations, 
nonprofit  or  otherwise,  including  firms,  with  which  you  were  connected  as  an 
officer,  director,  partner,  proprietor,  or  employee  since  graduation  from  college. 

Jan.  1,  1986  -  Present:  Sarah  S.  Vance,  a  Professional  Law  Corporation,  of 

which  I  am  the  sole  shareholder,  a  director  and  an 
officer,  is  a  partner  in  the  law  firm  of  Stone, 
Pigman,  Walther,  Wittmann  &  Hutchinson,  546 
Carondelet  Street,  New  Orleans,  Louisiana  70130. 
I  am  an  employee  of  the  professional  law 
corporation. 

Jan.  1983  -  Dec.  31,  1985:  Partner 

Stone,  Pigman,  Walther,  Wittmann  &  Hutchinson 

546  Carondelet  Street 

New  Orleans,  Louisiana  70130 


102 


June  30,  1982  -  Present:  Partner  in  The  546  Company,  a  partnership  of  the 

Stone,  Pigman  partners,  formed  to  develop,  lease 
and  operate  the  office  building  in  which  the  law 
firm  is  located. 

Sept.  1978  -  Dec.  31,  1982:  Associate 

Stone,  Pigman,  Walther,  Wittmann  &  Hutchinson 

546  Carondelet  Street 

New  Orleans,  Louisiana  70130 

Summer  1978  and  Summer  1977:     Law  Clerk 

Stone,  Pigman,  Walther,  Wittmann  &  Hutchinson 

546  Carondelet  Street 

New  Orleans,  Louisiana  70130 

Summer  1977  and  Summer  1976:     Law  Clerk 

Lemle,  Kelleher,  Kohlmeyer  &  Matthews 

Pan  American  Life  Center 

601  Poydras  Street 

Suite  2100 

New  Orleans,  Louisiana  70130 

Sept.  1972  -  July  1975:  Researcher,  then  Research  Analyst 

Public  Affairs  Research  Council 
4664  Jamestown  Avenue 
Baton  Rouge,  Louisiana 

Nov.  1,  1971  -  July  28,  1972:         Staff  Assistant 

Group  Pensions  Department 
Connecticut  General  Life  Insurance  Co.  (now 
CIGNA) 

950  Cottage  Grove  Road 
Bloorafield,  Connecticut  06002 


Military  Service:  have  you  had  any  military  service?  If  so,  give  particulars, 
including  the  dates,  branch  of  service,  rank  or  rate,  serial  number  and  type  of 
discharge  received. 

No. 


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103 


Honors  and  Awards:  List  any  scholarships,  fellowships,  honorary  degrees,  and 
honorary  society  memberships  that  you  believe  would  be  of  interest  to  the 
Committee. 

Tulane  University  School  of  Law 
Rank  in  Class:    1st 

Winner  Faculty  Medal  -  highest  overall  academic  average 
Order  of  the  Coif 

Managing  Editor,  Tulane  Law  Review,  1977-1978 
Board  of  Student  Editors,  Tulane  Law  Review,  1976-1977 
Gertler  Law  Review  Award,  Best  Casenote,  1977 
Joseph  Charles  Bostick,  Jr.  Scholarship 
Only  Student  Member,  Dean  Search  Committee,  1977-1978 
Named  Junior  Honorary  Member,  Louisiana  Law  Institute,  1978 

Louisiana  State  University 
Rank  in  Class:    1st 
Grade  Point  Average:   3.97 
Arts  &  Sciences  Honors  Scholarship 
Woodrow  Wilson  Fellowship  Finalist 
Phi  Beta  Kappa  Faculty  Group  Award 
Scholastic  Honoraries:  Phi  Kappa  Phi 

Mu  Sigma  Rho 

Pi  Sigma  Alpha 

Alpha  Lambda  Delta 

Member  Judicial  Board,  1971 


Bar  Associations:  List  all  bar  associations,  legal  or  judicial-related  committees  or 
conferences  of  which  you  are  or  have  been  a  member  and  give  the  titles  and  dates 
of  any  offices  which  you  have  held  in  such  groups. 

American  Bar  Association,  1978  to  Present 

Antitrust  Section:       Council,  1993-19% 

Chair,  Membership  Committee,  1991-1993 
Vice-Chair,  Membership  Committee,  1989-1991 
Member,  Health  Care  Committee,  1992  to  Present 
Member,  Civil  Practice  &  Procedure  Committee,  1984  to 
Present 


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Member,  Task  Force  on  Women  and  Minorities,  1991- 
1992 

Member,  Task  For     on  Inc  :rect  Purchaser  Issues,  1993 
Member,  Task  Fore-  on  Accreditation  of  Specialists,  1993 
to  Present 


Litigation  Section:      Member,  1978  to  Present 

Louisiana  State  Bar  Association,  1978  to  Present 

Antitrust  and  Trade  Regulation  Section:  Cbair,  1993-1995 


Vice-Chair,  1991-1993 
Secretary-Treasurer,  1989- 
1991 

Corporation  and  Business  Law  Section 

Civil  Law  and  Litigation  Section 

Client  Security  Fund  Committee,  Member,  1986-1989 

Federal  Bar  Association:    1986  to  Present 

New  Orleans  Bar  Association:    1982  to  Present 

Bar  Association  of  the  Federal  Fifth  Circuit:    1989  to  Present 

National  Association  of  Health  Lawyers:    1990  to  Present 

Federal  Energy  Bar  Association:    1986 

Louisiana  Association  of  Women  Attorneys:    1985-1989 

10.  Other  Memberships:  List  all  organizations  to  which  you  belong  that  are  active  in 
lobbying  before  public  bodies.  Please  list  all  other  organizations  to  which  you 
belong. 

(a)  No  lobbying  organization  memberships.  However,  I  am  a  member  of  the  Council 
of  the  Section  of  Antitrust  Law  of  the  American  Bar  Association,  which,  from 
time  to  time,  comments  on  proposed  Congressional  legislation  in  the  area  of 
antitrust  law. 


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(b)       Other  Organizations: 

Partners  in  Art  (New  Orleans  Museum  of  Art  support  group) 

Friends  of  the  Zoo 

Tulane  Associates 

Louisiana  State  University  Alumni  Association 

New  Orleans  Contemporary  Arts  Center 

11.  Court  Admissions:  List  all  courts  in  which  you  have  been  admitted  to  practice,  with 
dates  of  admission  and  lapses  if  any  such  memberships  lapsed.  Please  explain  the 
reason  for  any  lapse  of  membership.  Give  the  same  information  for  administrative 
bodies  which  require  special  admission  to  practice. 

Louisiana  Supreme  Court  and  State  Courts:   October  6,  1978 

United  States  District  Court,  Eastern  District  of  Louisiana:   December  6,  1978 

United  States  District  Court  for  Western  District  of  Louisiana:    October  30,  1987 

United  States  District  Court  for  Middle  District  of  Louisiana:   October  30,  1987 

Fifth  Circuit  Court  of  Appeals:   January  21,  1982 

Eleventh  Circuit  Court  of  Appeals:   January  22,  1982 

Supreme  Court  of  the  United  States:   September  16,  1988 


12.  Published  Writings:  List  the  titles,  publishers,  and  dates  of  books,  articles,  reports, 
or  other  published  material  you  have  written  or  edited.  Please  supply  one  copy  of 
all  published  material  not  readily  available  to  the  Committee.  Alio,  please  supply 
a  copy  of  all  speeches  by  you  on  issues  involving  constitutional  law  or  legal  policy. 
If  there  were  press  reports  about  the  speech,  and  they  are  readily  available  to  you, 
please  supply  them. 

A.        Publications  Since  Law  School   (Attachments  1-10) 

1 .  Immunity  for  State-Sanctioned  Provider  Collaboration  After  TICOR,  62  Antitrust 
Law  Journal  409  (1994). 

2.  Alternative  Delivery  Systems:  Antitrust  Issues  Implicated  by  Nonprice  Restraints 
(approved  for  publication  by  ABA  Section  of  Antitrust  Law). 

3.  FDIC  v.  Mijalis:  Introduction,  I  Bank  Gov.  L.  Reptr.  Nos.  2  &  3,  at  220  (Mar. 
-  Apr.  1992). 

4.  Contributing  Author:  Antitrust  Evidence  Handbook  (1991  Antitrust  Law  Section, 
American  Bar  Association).    (Pages  xiii,  89-110) 


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5.  New  Trouble  for  tr.    .Antitrust  Plaintif  -  The  Japanese  Electronics  Decision,  34 
La.  B.J.  20  (June  1986). 

6.  Fifth  Circuit  Symposium,  Antitrust  Law,  32  Loy.  L.  Rev.  579  (1986). 

7.  Fifth  Circuit  Symposium,  Antitrust  Law,  30  Loy.  L.  Rev.  517  (1984). 

8.  Recent  Developments  in  the  Law,  Antitrust  Law,  30  La.  B.J.  374  (April  1983). 
(erroneously  published  under  wrong  name) 

9.  Note,  Obligations:  Recovery  of  Nonpecuniary  Damages  in  Contract,  51  Tul.  L. 
Rev.  749  (1977). 

10.  Note,  Demise  and  Resurrection  of  the  St.  Mien  Doctrine,  51  Tul.  L.  Rev.  375 
(1977). 

B.        Pre-law  School  Publications  (Attachments  11-18) 


11.  The  Impact  of  Federal  Welfare  Reform  in  Louisiana,  PAR  Analysis  No.  202 
(Public  Affairs  Research  Council,  December  1974). 

12.  Curbing  Dual  Officeholding,  PAR  Analysis  No.  199  (Public  Affairs  Research 
Council,  September  1974). 

13.  No-Fault  Insurance- A  Reasonable  Alternative?  PAR  Analysis  No.  195  (Public 
Affairs  Research  Council,  January  1974). 

14.  PAR  Convention  Commentary,  No.  9,  Civil  Service  (Public  Affairs  Research 
Council,  December  1973). 

15.  Special  Education:    A  Mandate  to  Louisiana  Schools,  PAR  Analysis  No.  194 
(Public  Affairs  Research  Council,  December  1973). 

16.  PAR  Convention  Commentary,  No.  I.    The  Legislature  (Public  Affairs  Research 
Council,  July  1973). 

17.  Organizational  Structures  for  Insurance  Regulation,  PAR  Analysis  NO.   190 
(Public  Affairs  Research  Council,  April  1973). 


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18.       General  Election,  November  1972,  PAR  Analysis  No.   185  (Public  Affairs 
Research  Council,  November  1972). 

The  Public  Affairs  Research  Council  does  not  publish  in  the  names  of  individual 
researchers,  but  I  was  responsible  for  the  preparation  of  the  manuscripts  for  each  of  the 
above  publications. 


13.       Health;  What  is  the  present  state  of  your  health?  List  the  date  of  your  last  physical 
examination. 

Excellent 
March  2,  1994 


14.  Judicial  Office:  State  (chronologically)  any  judicial  offices  you  have  held,  whether 
such  position  was  elected  or  appointed,  and  a  description  of  the  jurisdiction  of  each 
such  court. 

None. 


15.  Citations;  If  you  are  or  have  been  a  judge,  provide:  (1)  citations  for  the  ten  most 
significant  opinions  you  have  written;  (2)  a  short  summary  of  and  citations  for  all 
appellate  opinions  where  your  decisions  were  reversed  or  where  your  judgment  was 
affirmed  with  significant  criticism  of  your  substantive  or  procedural  rulings;  and  (3) 
citations  for  significant  opinions  on  federal  or  state  constitutional  issues,  together 
with  the  citation  to  appellate  court  rulings  on  such  opinions.  If  any  of  the  opinions 
listed  were  not  officially  reported,  please  provide  copies  of  the  opinions. 

Not  applicable. 


16.  Public  Office:  State  (chronologically)  any  public  offices  you  have  held,  other  than 
judicial  offices,  including  the  terms  of  service  and  whether  such  positions  were 
elected  or  appointed.  State  (chronologically)  any  unsuccessful  candidacies  for 
elective  public  office. 

None. 


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17.       Legal  Career: 


Desc  >;te  chronologically  your  law  practice  and  experience  after  graduation 
from  law  school  including: 

1.         whether  you  served  as  clerk  to  a  judge,  and  if  so,  the  name  of  the 
judge,  the  court,  and  the  dates  of  the  period  you  were  a  clerk; 

No. 


whether  you  practiced  alone,  and  if  so,  the  addresses  and  dates; 

No. 


3.  the  dates,  names  and  addresses  of  law  firms  or  offices,  companies  or 
governmental  agencies  with  which  you  have  been  connected,  and  the 
nature  of  your  connection  with  each; 


Associate,  1978-1982: 


Partner,  1983-Present: 


Stone,  Pigman,  Walther.  Wittmann  & 

Hutchinson 
546  Carondelet  Street 
New  Orleans,  Louisiana   70130 

Stone,  Pigman,  Walther,  Wittmann  & 

Hutchinson 
546  Carondelet  Street 
New  Orleans,  Louisiana   70130 

Since  January  1,  1986,  my  professional 
corporation,  Sarah  S.  Vance,  A  Professional 
Law  Corporation,  of  which  I  am  the  sole 
shareholder,  has  been  a  partner  in  Stone, 
Pigman,  Walther,  Wittmann  &  Hutchinson. 
I  am  an  employee  of  the  professional 
corporation. 


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Other  Legal  Experience: 


Summer  1976  and  Summer  1977: 


Summer  1977  and  Summer  1978: 


Law  Clerk 

Lemle,  Kelleher.  Kohlmeyer  &  Matthews 

Pan  American  Life  Center 

601  Poydras  Street 

Suite  2100 

New  Orleans,  Louisiana   70130 

Law  Clerk 

Stone,  Pigman,  Walther,  Wittmann  & 

Hutchinson 
546  Carondelet  Street 
New  Orleans,  Louisiana   70130 


What  has  been  the  general  character  of  your  law  practice,  dividing  it 
into  periods  with  dates  if  its  character  has  changed  over  the  years? 

Since  joining  Stone,  Pigman  in  1978,  my  practice  has  been  in  the 
area  of  complex  commercial  litigation,  although  I  did  some  transactional 
work  during  my  first  three  years  of  practice.  In  addition,  beginning  in 
1985,  I  began  to  do  some  white  collar  criminal  defense  work,  principally 
in  the  area  of  antitrust  law,  but  later  including  defense  procurement  and 
insurance  fraud  cases.  On  the  civil  side,  I  have  represented  both  plaintiffs 
and  defendants  at  various  times  in  litigation  in  the  following  areas,  among 
others:  antitrust,  securities,  corporate  officer  and  director  liability, 
professional  malpractice,  oil  and  gas,  contracts,  state/local  taxation, 
sports-related  law,  civil  RICO,  insurance  regulation,  trademark  and  unfair 
competition  law. 


Describe  your  typical  former  clients,  and  mention  the  areas,  if  any,  in 
which  you  have  specialized. 

My  typical  clients  have  included  business  corporations, 
governmental  entities  and  to  a  lesser  extent,  individuals.  See  No.  1  for 
practice  areas. 


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c.  1.  Did  you  appear  in  court  frequently,  occasionally,  or  not  at  all?  If  the 
frequency  of  your  appearances  in  court  varied,  describe  each  such 
variance,  giving  dates. 

I  have  appeared  in  court  regularly,  but  the  nature  of  my  court 
appearances  varies  with  the  stage  of  the  proceedings  on  my  trial  schedule. 
Because  my  practice  usually  involves  complex  cases  that  take  years  to 
develop,  when  a  case  is  in  the  discovery  phase,  court  appearances  are 
brief  and  generally  involve  motion  practice,  whereas  trials,  particularly  in 
the  past  five  years,  tend  to  be  protracted  and  to  last  several  weeks. 
Further,  I  have  appeared  in  court  more  regularly  in  the  past  six  or  seven 
years  than  I  did  earlier  in  my  career. 


What  percentage  of  these  appearances  was  in: 

(a)  federal  courts; 

(b)  state  courts  of  record; 

(c)  other  courts. 

My  best  estimate  is  that  in  the  past  six  years,  about  95%  of  my 
court  appearances  were  in  federal  court  and  5  %  in  state  court.  In  prior 
years,  the  percentage  was  approximately  50%  federal,  50%  state,  with 
most  of  my  trial  work  in  state  court. 


What  percentage  of  your  litigation  was: 

(a)  civil; 

(b)  criminal. 

In  the  past  five  or  six  years,  approximately  80%  of  my  litigation 
experience  was  civil,  and  20%  was  criminal.  The  percentage  of  criminal 
work  was  lower  in  earlier  years.  I  did  not  do  any  criminal  work  prior  to 
1985. 


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State  the  number  of  cases  in  courts  of  record  you  tried  to  verdict  or 
judgment  (rather  than  settled),  indicating  whether  you  were  sole 
counsel,  chief  counsel,  or  associate  counsel. 

I  have  tried  approximately  18  cases,  in  40%  of  which  I  was  chief 
counsel  and  in  60%,  co-counsel. 


5.         What  percentage  of  these  trials  was: 

(a)  jury; 

(b)  non-jury. 

Approximate^  30%  of  these  trials  were  jury  trials,  and  70%  were  bench 
trials. 


18.  Litigation:  Describe  the  ten  most  significant  litigated  matters  which  you  personally 
handled.  Give  the  citations,  if  the  cases  were  reported,  and  the  docket  number  and 
date  if  unreported.  Give  a  capsule  summary  of  the  substance  of  each  case.  Identify 
the  party  or  parties  whom  you  represented;  describe  in  detail  the  nature  of  your 
participation  in  the  litigation  and  the  final  disposition  of  the  case.  Also  state  as  to 
each  case: 

a.  the  date  of  representation; 

b.  the  name  of  the  court  and  the  name  of  the  judge  or  judges  before  whom  the 
case  was  litigated;  and 

c.  the  individual  name,  addresses,  and  telephone  numbers  of  co-counsel  and  of 
principal  counsel  for  each  of  the  other  parties. 

1.  Federal  Deposit  Insurance  Corporation  v.  Mijetis,  et  al.,  C.A.  No.  89-1316  (W.D.  La. 
filed  1989),  aff'd  in  part  and  rev'd  in  part,  No.  92-5123  (5th  Cir.,  Mar.  10,  1994). 

In  Mijalis,  I  was  lead  counsel  for  the  Federal  Deposit  Insurance  Corporation 
("FDIC")  in  the  trial  of  a  director  and  officer  liability  action  against  12  former  officers  and 
directors  of  a  failed  insured  bank,  two  insurance  companies  and  one  insurance  agency.  In  this 
litigation,  FDIC  asserted  claims  of  gross  negligence  and  breach  of  fiduciary  duty  arising  from 
16  highly  complex  commercial  loan  transactions.  Discovery  and  other  pretrial  proceedings 
consumed  three  years,  and  a  number  of  defendants  settled  prior  to  trial.  In  December  1992, 1 
tried  the  case  against  six  defendants  before  a  jury  for  six  weeks  in  federal  court  in  Shreveport, 
Louisiana.  After  over  40  witnesses  testified  and  thousands  of  exhibits  were  introduced,  the  jury 

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"  61190/ 


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answered  133  separate  interrogatories  on  liability,  damages  and  insurance  issues  and  returned 
a  verdict  of  $28  million  in  favor  of  the  FDIC.  The  significance  of  the  case  was  not  only  the 
highly  complex  nature  of  the  trial,  but  also  that  it  resulted  in  one  of  the  largest  verdicts  awarded 
the  FDIC  in  all  the  cases  tried  in  the  wake  of  the  banking  crisis  of  the  1980's.  On  appeal,  the 
Fifth  Circuit  Court  of  Appeals  affirmed  the  jury  verdict  in  all  respects  but  reversed  the  trial 
court's  rulings  on  insurance  coverage. 


Nature  of  Participation: 
Trial  Period: 
Trial  Judge: 

Co-Counsel  for  FDIC: 


Lead  trial  counsel  for  FDIC  and  lead  counsel  on  the  appeal 

November  5,  1992  -  December  12,  1992 

Honorable  Tom  Stagg 
United  States  District  Judge 
Western  District  of  Louisiana 
Shreveport,  Louisiana 

Judy  Y.  Barrasso 

Barry  W.  Ashe 

Karen  H.  Freese 

Stone,  Pigman,  Walther,  Wittmann  &  Hutchinson 

546  Carondelet  Street 

New  Orleans,  Louisiana  70130 

Telephone:    (504)  581-3200 

Lawrence  H.  Richmond 

Appellate  Counsel 
Richard  Gill 

Counsel 
Federal  Deposit  Insurance  Corporation 
550  17th  Street,  N.W. 
Washington,  D.C.   20429 
Telephone:    (202)  736-0618 


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Counsel  for  Defendants, 
Gus  S.  Mijalis 
Alex  S.  Mijalis 
John  G.  Cosse 
Robert  A.  Oxenreiter: 


Counsel  for  Defendants, 
John  B.  Franklin 
and  J.  Harper  Cox,  Jr. 


Counsel  for  International 
Insurance  Co.  and 
Crum  &  Forster,  Inc.: 


Counsel  for  Lloyds  Underwriters 
of  London: 


Joseph  C.  LeSage,  Jr. 

John  R.  D'Anna 

Booth,  Lockard,  Politz,  LeSage  &  D'Anna 

1204  Transcontinental  Tower 

330  Marshall 

Suite  204 

Shreveport,  Louisiana   71101 

Telephone:    (318)  222-2333 


Paul  M.  Cooke 

Simon,  Fitzgerald,  Cooke,  Reed  &  Welch 

4700  Line  Avenue 

Suite  200 

Shreveport,  Louisiana  71106 

Telephone:    (318)686-2600 


Phillip  W.  Preis 

James  R.  Lewis 

Preis  &  Crawford 

1600  Premier  Centre,  N.  Tower 

450  Laurel  Street 

Baton  Rouge,  Louisiana  70801 

Telephone:    (504)  343-5290 


Duncan  L.  Gore 
Michael  Keeley 
Strasburger  &  Price 
4300  NCNB  Plaza 
901  Main  Street 
Dallas,  Texas  75202 
Telephone:    (214)651-4550 


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Counsel  for  Southern 
Underwriters,  Inc.  and  Morris, 
Temple  &  Trent,  Inc.: 


Counsel  for  W.  Theron  Roberts: 


Counsel  for  Dr.  John  R.  Davis: 


Counsel  for  Palmer  R.  Long: 


Counsel  for  Virginia  K.  Shehee: 


Counsel  for  Dr.  James  G.  Cosse 


Jack  M.  Alltmont 

Sessions  &  Fishman 

Place  St.  Charles 

201  St.  Charles  Avenue 

Suite  3500 

New  Orleans,  Louisiana   70170 

Telephone:    (504)  582-1507 

David  Klotz 

Bodenheimer,  Jones,  Klotz  &  Simmons 

509  Milam  Street 

Shreveport,  Louisiana  71101 

Telephone:    (318)  221-1507 

Gordon  E.  Rountree 

Rountree,  Cox,  Guin  &  Blackman 

400  Travis  Street 

Suite  1200 

Shreveport,  Louisiana   71101 

Telephone:    (318)226-0993 

John  M.  Madison,  Jr. 
Wiener,  Weiss,  Madison  &  Howell 
Post  Office  Box  21990 
Shreveport,  Louisiana  71120 
Telephone:    (318)226-9100 

Herschel  £.  Richard,  Jr. 
Cook,  Yancey,  King  &  Galloway 
1700  Commercial  National  Tower 
333  Texas  Street 
Shreveport,  Louisiana  71101 
Telephone:   (318)221-6277 

Tommy  J.  Johnson 

Tyler  &  Johnson 

1717  Marshall 

Shreveport,  Louisiana  71101 

Telephone:   (318)227-1960 


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Counsel  for  John  L.  Schober,  Jr.:    Kenneth  R.  Antee,  Jr. 

711  Transcontinental  Tower 
330  Marshall  Street 
Shreveport,  Louisiana  71101 
Telephone:    (318)  221-0781 

Tom  F.  Phillips 

Skip  Phillips 

Margaret  L.  Tooke 

Taylor,  Porter,  Brooks  &  Phillips 

Premiere  Centre    • 

451  Florida  Street 

8th  Floor 

Baton  Rouge,  Louisiana  70821 

Telephone:    (504)  387-3221 


2.        In  re  Marine  Construction  Antitrust  Litigation,  M.D.L.  No.  417  (E.D.  La.  1980-1986). 

In  Marine  Construction,  I  represented  21  oil  producing  and  pipeline  companies 
as  plaintiffs  in  six  antitrust  actions  against  two  marine  construction  firms.  In  May  1980,  the 
Panel  on  Multidistrict  Litigation  ordered  these  cases  consolidated  with  similar  actions  for  pretrial 
proceedings  in  the  United  States  District  Court  for  the  Eastern  District  of  Louisiana  in  In  re 
Marine  Construction  Antitrust  Litigation,  M.D.L.  No.  417.  The  cases  involved  allegations  of 
a  worldwide  price-fixing  conspiracy  spanning  20  years  that  affected  billions  of  dollars  in  marine 
construction  projects  in  the  Gulf  of  Mexico,  the  Persian  Gulf,  the  North  Sea  and  offshore  areas 
of  Alaska,  California,  South  America,  West  Africa,  Malaysia,  and  the  Philippines.  During  six 
years  of  pretrial  proceedings,  the  parties  produced  millions  of  documents,  deposed  over  500 
witnesses,  and  litigated  numerous  motions.  As  co-counsel  with  another  member  of  my  firm,  I 
participated  on  the  plaintiffs'  steering  committee,  which  spearheaded  the  prosecution  of  the  case. 
We  also  served  as  liaison  counsel  for  plaintiffs  in  dealing  with  the  court  and  opposing  counsel. 
Over  this  period,  I  took  numerous  depositions,  drafted  and  edited  volumes  of  briefs,  reviewed 
hundreds  of  thousands  of  documents,  appeared  in  court  often  and  was  responsible  for  preparing 
a  summary  judgment  motion  on  defendant's  counterclaim  for  monopsony  purchasing  practices. 
All  of  the  consolidated  cases  were  settled  prior  to  trial,  with  total  settlements  exceeding  $170 
million.  Some  of  my  clients  were  among  the  last  to  settle  in  1986  and  received  the  largest 
settlement.  The  case  was  a  nationally  significant  antitrust  case,  which  involved  the  participation 
of  some  of  the  leading  members  of  the  antitrust  and  trial  bars.  It  gave  me  extensive  experience 
with  complex  multidistrict  antitrust  litigation. 

Parties  Represented:  Columbia  Gulf  Transmission  Company 

Columbia  Gas  Pipeline  Co. 
Energy  Ventures,  Inc. 


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Forest  Oil  Company 

Cabot  Company 

Amoco  Production  Company 

Amoco  (U.K.)  Exploration  Co. 

Amoco  Norway  Oil  Co. 

Amoco  Trinidad  Oil  Co. 

Amoco  Iran  Oil  Company 

Amoco  Egypt  Oil  Company 

Exxon  Corporation 

Exxon  Pipeline  Co. 

Esso  Exploration  &  Production  Australia,  Inc. 

Esso  Production  Malaysia,  Inc. 

Sun  Oil  Company 

Diamond  Shamrock,  Inc. 

Elf  Acquitane,  Inc. 

Northern  Michigan  Exploration  Co. 

Pacific  Lighting  Corp. 

Sun  Pipe  Line  Company 


Co-Counsel  for  the  foregoing 
parties: 


Phillip  A.  Wittmann  (lead  for  all  except  Exxon  plaintiffs) 
Steven  W.  Usdin 
Richard  C.  Stanley 
Stone,  Pigman,  Walther, 

Wittmann  &  Hutchinson 
546  Carondelet  Street 
New  Orleans,  Louisiana  70130 
Telephone:    (504)581-3200 


Co-Counsel  for  the  Exxon 
Parties: 


E.  William  Bamett,  Lead  and  Chairman  of  Plaintiffs' 

Steering  Committee 
Rufus  W.  Oliver,  III 
3000  One  Shell  Plaza 
Houston,  Texas  77002 
Telephone:    (713)  229-1234 

Charles  W.  Matthews 

Exxon  Company,  U.S.A. 

Exxon  Building 

Room  1754 

Houston,  Texas   77002 

Telephone:    (713)  656-3366 


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Co-Counsel  for  All  Plaintiffs: 

Janet  L.  McDavid 

Hogan  &  Hanson 

Suite  12W-306 

555  Thirteenth  Street,  N.W. 

Washington,  D.C.   20004 

Telephone:    (202)  637-8780 

Counsel     for     Kerr-McGee 

Corp.: 

Glenn  W.  McGee 

Chadwell,  Kayser,  Ruggles,  McGee  &  Hastings,  Ltd. 

8500  Sears  Tower 

233  South  Wacker  Drive 

Chicago,  Illinois  60606 


Counsel  for  Michigan 
Wisconsin  Pipe  Line  Co.  and 
American  Natural  Gas 
Production  Co.: 


William  O.  Fifield 
Sidley  &  Austin 
One  First  National  Plaza 
Chicago,  Illinois  60603 
Telephone:    (312)  853-7000 


Counsel  for  Santa  Fe  Energy 
Co.,  et  al.  and  Belmont  Oil 
Corp.,  et  al.: 


Joseph  DuCoeur 
Kirkland  &  Ellis 
200  East  Randolph  Drive 
Chicago,  Illinois  60601 
Telephone:   (312)  861-2000 


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Counsel  for  Natural  Gas 
Pipeline  co.  of  America,  Inc. 
and  NAPECO,  Inc.: 


John  E.  Burke 

Burke,  Bosselman  &  Weaver 

Xerox  Centre 

55  West  Monroe  Street 

Suite  800 

Chicago,  Illinois   60603 

Telephone:    (312)   263-3600 


Counsel  for  Consolidated  Gas 
Supply  Corp.,  CNG 
Producing  Co. ,  and  Newmont 
Oil  Co.: 


James  E.  Wright,  Jr. 

7379  Agate  Street 

New  Orleans,  Louisiana  70124 

Telephone:    (504)  282-2476 


Counsel  for  Texaco,  Inc.: 


Fred  A.  Freund 

Kaye,  Scholer,  Fierman,  Hays  &  Handler 

425  Park  Avenue 

New  York,  New  York    10022 

Telephone:    (212)  836-8000 


Counsel  for  American 
Natural  Gas  Production  Co.: 


William  O.  Fifield 

David  T.  Pritikin 

Nathan  P.  Eimer 

Sidley  &  Austin 

One  First  National  Plaza 

Chicago,  Illinois  60603 

Telephone:   (312)  853-7000 


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Counsel      for      Aminoil 
International  Inc., 
Aminoil  U.S.A.  Inc., 
American  Independent  Oil 

Co., 
Aminoil  Development  Inc., 
and 
Signal  Oil  of  Louisiana,  Inc.: 


Stephen  D.  Susman 
Gary  V.  McGowan 
Randall  Wilson 

Susman,  Godfrey  &  McGowan 
2400  Allied  Bank  Plaza 
1000  Louisiana 
Houston,  Texas  77002 
Telephone:    (713)651-9366 


Counsel      for      Clark      Oil 
Producing  Co.: 


Robin  P.  Hartman 

William  R.  Allensworth 

Haynes  and  Boone 

4444  First  International  Building 

Dallas,  Texas  75270 

Telephone:   (214)744-0550 


Counsel  for  Plaintiff, 
Coastal  Oil  &  Gas  Corp.: 


Stephen  D.  Susman 
Gary  V.  McGowan 
Randall  Wilson 

Susman,  Godfrey  &  McGowan 
2400  Allied  Bank  Plaza 
1000  Louisiana 
Houston,  Texas  77002 
Telephone:    (713)651-9366 


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Counsel  for  Conoco  Inc.: 


Marjorie  A.  Wil:     n 
Conoco  In;. 

600  N.  Dairy  Ashford  Road 
McClean  Building 
Houston,  Texas  77079 
Telephone:    (713)293-1228 

Michael  M.  Levy 

Levy  &  Smith 

Suite  300 

4801  Massachusetts  Avenue,  N.W. 

Washington,  D.C.   20016 

Telephone:   (202)686-5700 


Counsel  for  Plaintiff, 
El  Paso  Natural  Gas  Co. 


Stephen  D.  Susman 
Gary  V.  McGowan 
Randall  W.  Wilson 
Susman,  Godfrey  &  McGowan 
2400  Allied  Bank  Plaza 
1000  Louisiana 
Houston,  Texas  77002 
Telephone:    (713)651-9366 


Counsel  for  Plaintiffs, 

Mobil  Oil  Corp., 

Mobil  Eugene  Island  Pipeline 

Co., 
Mobil  Oil  Exploration  & 

Producing  Southeast  Inc., 
and  Mobil-GC  Corp.: 


Blake  G.  Arata 

John  M.  McCollam 

Gordon,  Arata,  McCollam  &  Duplantis 

201  St.  Charles  Avenue 

Suite  4000 

New  Orleans,  Louisiana  70170 

Telephone:   (504)582-1111 


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Counsel  for  Plaintiffs, 
Norsk  Hydro  a.s.  and 
Norsk  Hydro  Produksjon 


a.s.: 


Edward  N.  Sherry 

John  F.  Collins 

Dewey,  Ballantine 

1301  Avenue  of  the  Americas 

New  York,  New  York   10019 

Telephone:   (212)259-8000 


Counsel  for  Plaintiff, 
The  Northwestern  Mutual 
Life  Insurance  Company: 


J.  Currie  Bechtol 
Hutcheson  &  Grundy 
3300  Two  Allen  Center 
Houston,  Texas  77002 
Telephone:   (713)951-2800 


Counsel  for  Plaintiff, 
Petroleos  Mexicanos: 


Douglas  S.  Johnston 

Crady  &  Peden 

Two  Houston  Center 

909  Fannin 

Suite  1400 

Houston,  Texas   77010 

Telephone:   (713)739-7007 


Counsel  for  Plaintiffs, 
Southern  Natural  Gas  Co. 
Sonat  Exploration  Co. , 
and  The  Offshore  Co.: 


Joe  H.  Reynolds 
Reynolds,  Allen  &  Cook 
3300  Allied  Bank  Plaza 
Houston,  Texas  77002 
Telephone:    (713)651-1300 


Michael  K.  Swan 
Andrews  &  Kurth,  L.L.P. 
4200  Texas  Commerce  Tower 
Houston,  Texas  77002 
Telephone:    (713)220-4200 


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Counsel  for  Plaintiffs, 
Valero  Energy  Corp.  and 
Gas  Producing  Enterprises, 
Inc.: 


Stephen  D.  Susman 
Gary  V.  McGowan 
Randall  W.  Wilson 
Susman,  Godfrey  &  McGowan 
2400  Allied  Bank  Plaza 
1000  Louisiana 
Houston,  Texas  77002 
Telephone:   (713)651-9366 


Counsel  for  OKC  Corp., 
Terra  Resources,  Inc.  et  al. , 
Energy  Reserves  Group, 

Inc.,  et  al., 
Home  Petroleum  Corp., 
Getty  Oil  Co.,  etal. 
The  Louisiana  Land  & 

Exploration  Co.,  et  al. , 
H.  W.  Bass  &  Sons,  Inc., 
Amax  Petroleum  Corp., 
Tesoro  Petroleum  Corp.,  et 

al, 
Union  Oil  Co.  of  California, 

et  al. : 


Stephen  D.  Susman 
Gary  V.  McGowan 
Randall  W.  Wilson 
Susman,  Godfrey  &  McGowan 
2400  Allied  Bank  Plaza 
1000  Louisiana 
Houston,  Texas  77002 
Telephone:   (713)651-9366 


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Counsel  for  American 
Petrofina  Co.  of  Texas,  et 
al., 

Wintershall  Oil  &  Gas  Co. : 


Morris  Harrell 

Rain,  Harrell,  Emery,  Young  &  Done 

4200  Republic  Bank  Tower 

Dallas,  Texas  75201 

Telephone:    (214)742-1021 


Counsel  for  Freeport 
Minerals  Co.,  et  al. 


Howard  Adler,  Jr. 

Davis,  Graham  &  Stubbs 

Suite  500 

1200  Nineteenth  Street,  N.W. 

Washington,  D.C.   20036 

Telephone:    (202)822-8660 


Counsel  for  Tenneco,  Inc. 


Martin  Michaelson 
Janet  L.  McDavid 
Hogan  &  Hartson 
Columbia  Square 
555  Thirteenth  Street,  N.W. 
Washington,  D.C.   20004 
Telephone:    (202)637-5600 


Counsel  for  Cities  Service 

Co.,  et  al., 
Clam  Petroleum  Co.,  and 
Phillips  Petroleum  Co.,  et 

al.: 


L.  K.  Smith 

William  C.  KeUough 

Boone,  Smith,  Davis  &  Minter 

900  World  Building 

Tulsa,  Oklahoma  74103 

Telephone:    (918)587-0000 


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Counsel  for  Tenneco  Oil  Co. , 
etal.: 


Counsel  for  High  Island 

Offshore   System,    et  al., 
Texas     Gas     Transmission 
Corp.,  et  al.,  and 
U-T  Offshore  System,  et  al. : 


•nes  R.  Schmir 
.aneco  Oil  Company 
Post  Office  Box  2511 
Houston,  Texas  77001 
Telephone:    (713)  757-2131 


Donald  H.  Balleisen 
Greenebaum,  Doll  &  McDonald 
3300  First  National  Tower 
Louisville,  Kentucky  40202 
Telephone:   (502)589-4200 


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125 


Counsel  for  Southland 

Royalty  Co., 
Pam  Eastern  Exploration 

Co.,  et  al.. 
Crystal  Oil  Co.,  et  al., 
Texas  Eastern  Transmission 

Corp.,  et  al., 
Trunkl ine  Gas  Co., 
Stingray  Pipeline  Co. ,  et  al. , 
and  Hamilton  Brothers  Oil 

Co. ,  et  al.. 


Joe  H.  Reynolds 
Reynolds,  Allen  &  Cook 
1100  Milam  Building 
16th  Floor 

Houston,  Texas  77002 
Telephone:    (713)651-1300 


Michael  K.  Swan 
Andrews  &  Kurth,  L.L.P. 
4200  Texas  Commerce  Tower 
Houston,  Texas  77002 
Telephone:   (713)220-4200 


Counsel  for  Loop  Inc.: 


Earl  S.  Eichin,  Jr. 

O'Neil,  Eichin,  Miller  &  Breckinridge 

639  Loyola  Avenue 

Suite  2600 

New  Orleans,  Louisiana  70113 

Telephone:   (504)525-3200 


Charles  F.  Thensted 

430  Notre  Dame 

New  Orleans,  Louisiana  70130 

Telephone:   (504)524-9714 


Counsel  for  Koch  Industries, 
Inc.: 


James  T.  Skelly 
4704  Southshore  Drive 
Metairie,  Louisiana  70002 
Telephone:   (504)887-7048 


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126 


Counsel  for  Ocean  Drilling . 
Exploration  Co.,  et  al.: 


Lewis  H.  Pitman 
6221  West  End  Boulevard 
New  Orleans,  Louisiana  70124 
Telephone:   (504)486-2407 


Counsel  for  J.  S. 
Abercrombie  Mineral  Co. 


Donald  E.  Kee 

Fouts,  Moore,  Coleman  &  Royall 

5005  Riverway 

Suite  400 

Houston,  Texas  77056 

Telephone:    (713)622-9966 


Counsel    for   Marathon  Oil 
Co.,  et  al.: 


Jack  M.  Mc Adams 
Marathon  Oil  Company 
Post  Office  Box  3128 
1776  Yorktown 
Houston,  Texas  77001 
Telephone:   (713)629-6600 


Counsel  for  Plaintiffs, 
Gulf  Oil  Corporation,  et  al. : 


John  E.  Bailey 
Catherine  C.  McCulley 
Robert  A.  Nailling 
David  R.  Stevenson 
Gulf  Oil  Corp. 
Post  Office  Box  3725 
Houston,  Texas  77253 
Telephone:   (713)754-2000 


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127 


Counsel  for  The  Dow 
Chemical  Company,  et  al., 
and  Shell  Oil  Company,  et 
al.: 


Keith  E.  Pugh.  Jr. 
Marcia  Press  Kaplan 
Howrey  &  Simon 
1730  Pennsylvania  Avenue, 
Washington,  D.C.   20006 
Telephone:   (202)783-0800 


N.W. 


Counsel      for      Atlantic 
Richfield  Company,     et  al. : 


Donald  A.  Bright 

Edward  E.  Vaill 

Howard  S.  Fredman 

Atlantic  Richfield  Company 

515  South  Flower  Street 

Los  Angeles,  California  90071 

Telephone:    (213)486-1510 


Counsel     for     Florida 
Exploration  Co.  and 
Drillamex,  Inc.: 


James  W.  Dil worth 

Carta  Powers  Dykes 

James  L.  Mueller 

Andrews  &  Kurth 

4200  Texas  Commerce  Tower 

Houston,  Texas  77002 

Telephone:    (713)  22(W200 


Counsel  for  British  Petroleum 
Company,  Ltd.,  et  al.: 


Bruce  A.  Hecker 

Richard  Czaja 

Susan  Ratner 

Shea  &  Gould 

330  Madison  Avenue 

New  York,  New  York   10017 

Telephone:   (212)370-8000 


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128 


Counsel  for  Arabian 
American  Oil  Co.,  et  al. 
and  The  Northwestern 
Mutual  Life  Insurance  Co.: 


John  D.  Roady 
Thomas  T.  Hutcheson 
J.  Currie  Bechtol 
Hutcheson  &  Grundy 
3300  Two  Allen  Center 
Houston,  Texas  77002 
Telephone:    (713)654-7000 


Counsel  for  Defendants, 
J.  Ray  McDennott  &  Co. 

Inc., 
Oceanic  Contractors,  Inc., 
Charles  L.  Graves, 
Robert  K  Richie, 
H.  W.  Bailey,  and 
H.  Rogers  Reeves: 


Denis  Mclnemey 

Michael  P.  Tierney 

Ray  Regozin 

Cahill,  Gordon  &  Reindel 

80  Pine  Street 

New  York,  New  York   10005 

Telephone:    (212)701-3000 

Harry  A.  Rosenberg 

Phelps,  Dunbar 

Texaco  Center 

400  Poydras  Street 

New  Orleans,  Louisiana  70130 

Telephone:   (504)566-1311 


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Counsel  for  Defendants, 
Brown  &  Root,  Inc., 
Halliburton  Co., 
Hugh  W.  Gordon,  Jr.,  and 
Edward  L.  Tallichet: 


Richard  P.  Keeton 

Jack  C.  Nickens 

Scon,  Douglass  &  Keeton 

2526  One  Houston  Center 

Houston,  Texas  77002 

Telephone:   (713)759-1234 

Don  M.  Richard 
Denechaud  &  Denechaud 
1412  Pere  Marquette  Building 
New  Orleans,  Louisiana  70112 
Telephone:    (504)522-4756 


Trial  Judge: 


Honorable  Morey  L.  Sear 
United  States  District  Court 
Eastern  District  of  Louisiana 
New  Orleans,  Louisiana 


3.         United  States  of  America  v.  Gerald  J.  Daigle.  Jr.,  et  al.,  Cr.  No.  92-312  (E.D.  La., 
filed  June  1992),  on  appeal,  No.  93-3643  (5th  Circuit  Court  of  Appeals). 

In  Daigle,  I  represented  an  attorney  in  the  defense  of  a  26-count  indictment 
brought  by  the  United  States  alleging  that  the  attorney  participated  with  several  co-defendants 
and  co-conspirators  in  an  unlawful  scheme  to  misrepresent  the  condition  of  a  Louisiana  insurance 
company  in  violation  of  six  federal  statutes.  The  defendant,  a  corporate  lawyer  at  a  major  New 
Orleans  law  firm,  was  outside  counsel  for  the  insurance  company.  I  also  represented  the 
defendant  in  a  parallel  civil  action  filed  by  the  Louisiana  Department  of  Insurance  to  recover 
millions  of  dollars  in  insurance  losses,  claiming  attorney  malpractice. 

After  almost  a  year  of  pretrial  proceedings  and  two  superseding  indictments,  the 
criminal  case  was  tried  by  jury  for  six  weeks  in  federal  court  beginning  May  10,  1993.  Daigle 
was  a  highly  complex  criminal  trial  involving  ten  complicated  commercial  transactions,  44 
witnesses  and  thousands  of  exhibits.  I  was  responsible  for  the  management  of  the  pretrial  phase 
of  the  case,  which  involved  investigation  of  the  charges,  learning  the  regulatory  framework  of 
the  insurance  industry  in  Louisiana,  litigating  discovery  motions,  analyzing  thousands  of 
documents  and  structuring  the  defense  for  trial.  In  addition,  I  was  intensely  involved  in  all 
aspects  of  trial  preparation,  including  preparing  and  arguing  motions  in  limine,  preparing  jury 
instructions,  devising  trial  strategy  and  drafting  opening  and  closing  statements.    I  was  co- 


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130 


counsel  for  the  defendant  during  the  trial,  and  I  handled  witnesses  on  direct  and  cross- 
examination  and  argued  motions. 

The  defendant  was  convicted  on  some  counts  and  acquitted  on  others.   The  case 
is  now  on  appeal  to  the  Fifth  Circuit  Court  of  Appeals.   I  participated  in  briefing  the  appeal. 


Trial  Period: 


May  10,  1993  -  June  16.  1993 


Co-Counsel  for 
Gerald  J.  Daigle,  Jr. 


Phillip  A.  Wittmann  (lead) 

Stone,  Pigman,  Walther,  Wittmann  &  Hutchinson 

546  Carondelet  Street 

New  Orleans,  Louisiana  70130 

Telephone:    (504)581-3200 


Counsel  for  defendant, 
George  C.  Cavin: 


Arthur  A.  Lemann,  III 

300  Lafayette  Street 

New  Orleans,  Louisiana  70130 

Telephone:   (504)522-8104 


Counsel  for  defendant, 
John  E.  Seago: 


John  DiGiulio 

331  St.  Ferdinand 

Baton  Rouge,  Louisiana  70802 

Telephone:    (504)383-0078 


Counsel  for  defendant, 
Lawrence  Stoulig: 


Michael  H.  Ellis 

Chehardy,  Sherman,  Ellis,  Breslin  &  Murray 

1  Galleria  Boulevard 

Suite  1100 

Metairie,  Louisiana  70001 

Telephone:    (504)833-5600 


Counsel  for  defendant, 
David  B.  Ridge  way: 


Ralph  Capitelli 

Capiteili  &  Wickder 

1100  Poydras  Street 

Suite  2950 

New  Orleans,  Louisiana  70163 

Telephone:    (504)582-2425 


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Counsel  for  defendant, 
Peter  Percopo: 


Counsel  for  defendant, 
Glynn  Pittmann: 


Counsel  for  the  United  States: 


George  Simno,  III 

601  N.  Carrollton  Avenue 

New  Orleans,  Louisiana  70119 

Telephone:   (504)  484-7655/488-6261 


Frank  G.  DeSalvo 

725  Girod  Street 

New  Orleans,  Louisiana  70130 

Telephone:    (504)524-4191 

Harry  M.  Rosenberg 

former  United  States  Attorney 
Phelps,  Dunbar 
30th  Floor 
Texaco  Center 
400  Poydras  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)566-1311 

Robert  J.  Boitman 

United  States  Attorney 
James  Letten 

Assistant  United  States  Attorney 
501  Magazine  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)589-2921 

Herbert  Mondros 

Appellate  Counsel 

501  Magazine  Street 

New  Orleans,  Louisiana  70130 

Telephone:   (504)589-2921 


Trial  Judge: 


Honorable  Peter  Beer 
United  States  District  Judge 
Eastern  District  of  Louisiana 
New  Orleans,  Louisiana 


32 


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132 


4.         Federal  Savings  and  Loan  Insurance  Corporation  v.  Mmahat,  et  al. ,  C.  A.  No.  86-5160 
(E.D.  La.,  filed  November  21,  1986),  aff  J,  907  F.2d  546  (5th  Or.  1990). 

In  Mmahat,  I  represented  the  Federal  Savings  and  Loan  Insurance  Corporation 
in  a  suit  involving  claims  of  breach  of  fiduciary  duty,  negligence,  and  professional  malpractice 
against  IS  former  officers  and  directors,  attorneys  and  architects  of  a  failed  savings  and  loan 
association  and  their  respective  liability  insurance  companies.  After  two  years  of  extensive 
discovery  involving  production  of  hundreds  of  thousands  of  documents,  scores  of  depositions, 
and  other  pretrial  proceedings,  the  case  was  tried  to  a  jury  in  federal  court  in  New  Orleans  for 
almost  a  month  in  late  1988.  The  jury  received  evidence  on  a  dozen  complicated  commercial 
loan  transactions  through  over  20  fact  and  expert  witnesses  and  thousands  of  exhibits.  FSLIC 
won  a  verdict  of  $35  million,  one  of  the  largest  jury  awards  it  ever  received.  In  addition, 
FSLIC  obtained  several  million  dollars  in  settlements  from  a  number  of  defendants  who  settled 
prior  to  or  during  trial.  On  appeal,  the  Fifth  Circuit  Court  of  Appeals  affirmed  the  jury  verdict, 
as  well  as  certain  adverse  rulings  by  the  trial  court  on  insurance  coverage. 


Nature  of  Participation: 


I  was  co-counsel  for  FSLIC  in  the  pretrial  proceedings  and 
at  trial.  I  was  responsible  for  the  development  of  the 
architectural  malpractice  case,  which  was  successfully 
settled  before  trial,  as  well  as  for  the  preparation  and  trial 
presentation  of  various  aspects  of  the  legal  malpractice  and 
breach  of  fiduciary  duty  phases  of  the  case. 


Trial  Period: 


November  10,  1988  -  December  8,  1988 


Co-Counsel  for  FSLIC: 


Phillip  A.  Wittmann  (lead) 
James  C.  Gulotta,  Jr. 
Stone,  Pigman,  Walther, 
Wittmann  &  Hutchinson 
546  Carondelet  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)581-3200 


James  Murphy 
Squire,  Sanders  &  Dempsey 
1201  Pennsylvania  Avenue,  N.W. 
Post  Office  Box  407 
Washington,  D.C.   20044 
Telephone:   (202)626-6600 


-33- 


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133 


Counsel  for  Defendants, 
John  A.  Mmahat 
Mmahat  &  Duffy 
Mmahat,  Duffy,  Opotowsky  & 
Walker: 


Counsel  for  Defendant, 
Mmahat,  Duffy,  Opotowsky 
&  Walker: 


Mary  L.  Wolff 

Wolff  Ardis 

6055  Primacy  Parkway 

Suite  360 

Memphis,  Tennessee  38119 

Telephone:    (901)763-3336 

Eugene  Comey 

Appellate  Counsel 

Comey  &  Boyd 

1101  Connecticut  Avenue,  N.W. 

Suite  406 

Washington,  D.C.   20036 

Telephone:   (202)822-6340 


Richard  T.  Simmons,  Jr. 

Hailey,  McNamara,  Hall,  Larman  &  Papale 

Suite  1400 

One  Galleria  Boulevard 

Post  Office  Box  8288 

Metairie,  Louisiana  70011 

Telephone:    (504)836-6500 


Michael  H.  Ellis 

Chehardy,  Sherman,  Ellis,  Breslin  &  Murray 

1  Galleria  Boulevard,  Suite  1100 

Metairie,  Louisiana  70001 

Telephone:   (504)833-5600 


Counsel  for  Defendants, 
James  B.  Cobb 
Elva  N.  Winters: 


L.  Eades  Hogue 

C.  Allen  Hennesy 

Lemle,  Kelleher,  Kohhneyer,  Dennery,  Hunley,  Moss  & 

Frilot 
601  Poydras  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)586-1241 


34 


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134 


Counsel  for  Defendant, 
William  Lucas: 


Counsel  for  Defendant, 
Rodney  P.  Jordy: 


Counsel  for  Defendant, 
David  M.  Resha 


Counsel  for  Defendant, 
American  Casualty  Company  of 
Reading,  Pennsylvania: 


Henry  B.  Hoppe.  Jr. 
Sciambra  &  Hoppe 
3009  Lime  Street 
Metairie,  Louisiana   70006 
Telephone:    (504)  885-7122 


Richard  J.  Tomeny,  Jr. 
First  Industrial  Bank 
1501  Veterans  Boulevard 
Second  Floor 

Metairie,  Louisiana  70005 
Telephone:   (504)  836-0253 


Frank  G.  DeSalvo 

725  Girod  Street 

New  Orleans,  Louisiana   70130 

Telephone:   (504)524-4191 


J.  Michael  Johnson 

Marianne  S.  Pensa 

Galloway,  Johnson,  Tompkins  &  Burr 

4040  One  Shell  Square 

New  Orleans,  Louisiana  70139 

Telephone:    (504)525-6802 


Counsel  for  Defendant, 
Mount  Hawley  Insurance 
Company: 


J.  Forrest  Hinton,  T.A. 

Adams  &  Reese 

Suite  4500 

One  Shell  Square 

New  Orleans,  Louisiana  70139 

Telephone:   (504)581-3234 


35 


•IHW 


135 


Counsel  for  Defendants, 
Continental  Casualty  Company, 
John  T.  Pender,  as  Trustee  for 
the  bankruptcy  estate  of 
Richard  C.  Mouledous, 
Robert  Marrero,  as  Trustee  for 
the  bankruptcy  estate  of 
Mouledous  Architectural 
Corporation: 


Counsel  for  Defendant, 
New  England  Reinsurance 
Company: 


Counsel  for  Defendant, 
Gulf  Builders,  Inc.: 


Counsel  for  Defendant  and 
Third-Party  Defendant, 

Fidelity  &  Deposit  Company 
of  Maryland: 


John  A.  Stewart,  Jr. 

Regel  L.  Bisso 

Hulse,  Nelson  &  Wanek 

610  Baronne  Street 

New  Orleans,  Louisiana  70130 

Telephone:   (504)524-6221 


Donald  A.  Hammett 

John  V.  Baus,  Jr. 

Blue,  Williams  &  Buckley 

3421  North  Causeway  Boulevard 

Ninth  Floor 

Metaihe,  Louisiana  70002 

Telephone:   (504)831-4091 


Anita  M.  Warner 

Hurley  &  Hoffmann 

909  Poydras  Street 

Suite  1700 

LL&E  Tower 

New  Orleans,  Louisiana  70112 

Telephone:   (504)584-5160 


Eugene  R.  Preaus 

Preaus,  Roddy  &  Krebs 

650  Poydras  Street 

Suite  1650 

New  Orleans,  Louisiana  70130 

Telephone:   (504)523-2111 


-36 


611 


136 


Counsel  for  Defendant  and 
Third-Party  Plaintiff, 

Unroll  Capdeville 


Counsel  for  Third-Party 

Defendant, 
Commonwealth  Land  Title 

Insurance  Company: 


Trial  Judge: 


Phillip  A.  Gattuso 
Post  Office  Box  1190 
56  Westbank  Expressway 
Gretna,  Louisiana  70054 
Telephone:   (504)  368-4141 


Roy  L.  Price 

Ted  A.  Price 

One  Poydras  Plaza 

Suite  1060 

639  Loyola  Avenue 

New  Orleans,  Louisiana  70113 

Telephone:   (504)523-3392 

Honorable  Charles  Schwartz 
United  States  District  Court 
Eastern  District  of  Louisiana 


5. 


Barbay  v.  National  Collegiate  Athletic  Association  and  Louisiana  State  University,  C.A. 
No.  86-5697,  1987  LEXIS  U.S.  Dist.  393  (E.D.  La.  1987). 


In  Barbay,  I  represented  the  National  Collegiate  Athletic  Association  in  the  trial 
of  an  injunctive  action  by  an  LSU  football  player  to  enjoin  the  NCAA's  determination  that  he 
was  ineligible  to  play  in  the  January  1987  Sugar  Bowl  because  he  tested  positive  for  steroid  use. 
The  significance  of  the  case  was  that  it  rejected  a  constitutional  challenge  to  the  NCAA's  drug 
testing  program  for  college  athletes,  which  had  nationwide  ramifications  for  the  NCAA's  drug 
mung  program. 


Nature  of  Participation: 


of  Trial: 


I  was  lead  trial  counsel  for  the  NCAA. 

The  hearing  on  the  preliminary  injunction  was  consolidated 
with  the  trial  on  the  merits  and  took  place  on  December 
31,  1986. 


37- 


61190/ 


137 


Trial  Judge: 


Honorable  Robert  F.  Collins 
United  States  District  Judge 
Eastern  District  of  Louisiana 
New  Orleans,  Louisiana 


Co-Counsel  for  NCAA: 


Counsel  for  LSU: 


Counsel  for  Roland  Barbay : 


John  M.  Land  is 

Stone,  Pigman,  Walther, 

Wittmann  &  Hutchinson 
546  Carondelet  Street 
New  Orleans,  Louisiana  70130 
Telephone:    (504)581-3200 

John  Black 

Swanson,  Midgley 

922  Walnut 

Suite  1500 

Kansas  City,  Missouri  64106 

Telephone:    (816)  842-6100 

Shelby  McKenzie 

Taylor,  Porter,  Brooks  &  Phillips 

Premiere  Centre 

451  Florida  Street 

8th  Floor 

Baton  Rouge,  Louisiana  70821 

Telephone:   (504)387-3221 

Nick  F.  Noreia,  Jr. 

Gainsburgh,  Benjamin,  Fallon,  David  &  Ates 

2800  Energy  Centre 

1100  Poydras  Street 

New  Orleans,  Louisiana  70163 

Telephone:    (504)522-2304 


6.         Steven  J.  Dupuis,  Sr.,  et  al.  v.  Thomas  R.  Becnel,  The  Becnel  Co.,  and  J.  B.  Mouton 
&  Sons,  C.A.  No.  87-1781  (W.D.  La.  filed  August  1987). 

In  Dupuis,  I  represented  the  plaintiffs,  who  were  limited  partners  and  investor! 
in  a  commercial  real  estate  development  partnership,  in  the  trial  of  an  action  against  a  real  esuie 
developer  and  a  construction  contractor  for  securities  fraud,  civil  RICO  violations,  breach  of 
contract  and  breach  of  fiduciary  duty.  The  case  involved  two  years  of  fact  and  expert  disco  very 
and  extensive  motion  practice.   After  successfully  resisting  repeated  attempts  to  have  the 


-38 


138 


dismissed  before  trial,  the  plaintiffs'  claims,  along  with  defendant's  counterclaim,  were  tried  to 
a  jury  in  federal  court  in  Lafayette,  Louisiana  for  a  month  in  October  1989.  The  jury  found  no 
liability  on  either  plaintiffs'  claims  or  defendant's  counterclaim  after  protracted  deliberations. 


The  case  was  significant  because  of  the  complexity  of  the  trial  and  that  it  involved 
•a  actual  trial  of  a  civil  RICO  case.  These  claims  are  usually  dismissed  or  otherwise  disposed 
of  prior  to  trial. 


Nature  of  Participation: 


I  was  co-counsel  for  plaintiffs  and  was  responsible  for  the 
management  of  the  case  in  the  pretrial  stages,  which 
included  numerous  depositions,  production  of  thousands  of 
documents,  heavy  motion  practice,  and  formulation  of  an 
extensive  RICO  case  statement,  pretrial  order  and  jury 
instructions.  In  addition,  I  was  co-counsel  at  trial  during 
which  I  argued  motions,  examined  and  cross-examined 
witnesses  and  participated  in  the  development  of  opening 
and  closing  statements. 


Trial  Period: 


October  1,  1989  -  October  31,  1989 


Parties  Represented: 


Co-Counsel: 


Steven  J.  Dupuis,  Sr. 
James  H.  Dupuis,  Sr. 
John  W.  Dupuis,  III 
John  W.  Wright,  Trustee 

Phillip  A.  Wittmann  (lead) 
Richard  C.  Stanley 
Stone,  Pigman,  Walther, 

Wittmann  &  Hutchinson 
546  Carondelet  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)581-3200 


el  for  Thomas  Becnel  and 
Tbe  Becnel  Company: 


L.  Eades  Hogue 

Lemle,  Kelleher,  Kohlmeyer,  Deanery,  Hunley,  Moss  & 

Frilot 
2100  Pan  American  Life  Center 
601  Poydras  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)586-1241 


-39 


61 IW 


139 


Thomas  D.  Curtis 

100  E.  Vermilion  Street 

Suite  303 

Lafayette,  Louisiana  70501 

Telephone:    (318)232^438 

Counsel  for  J.  B.  Mouton  &  Sons:  Richard  T.  Simmons,  Jr. 

Thomas  Richard 

Hailey,  McNamara,  Hall,  Larman  &  Papale 
Suite  1400 

One  Galleria  Boulevard 
Post  Office  Box  8288 
Metairie,  Louisiana  70011-8288 
Telephone:   (504)836-6500 

Trial  Judge:  Honorable  Donald  Walter 

United  States  District  Judge 
Western  District  of  Louisiana 
Shreveport,  Louisiana 


7.  Amoco  Production  Co.  v.  Landry,  et  al„  No.  81-16631  (Civil  District  Court,  Parish 
of  Orleans),  426  So.  2d  220  (La.  App.  4th  Cir.  1982),  writ  denied,  433  So.  2d  164 
(La.  1983). 

In  Amoco,  I  represented  the  plaintiffs  in  the  trial  of  a  mandamus  proceeding 
against  the  Louisiana  Board  of  Professional  Engineers  and  Land  Surveyors  to  allow  public 
inspection  of  the  records  of  disciplinary  hearings  before  the  Board.  Although  the  trial  court 
denied  the  writ,  its  judgment  was  reversed  on  appeal.  The  significance  of  the  case  is  that  the 
appellate  court  confirmed  the  strong  public  policy  underpinnings  of  the  Louisiana  Public  Records 
Law,  which  requires  it  to  prevail  over  claims  of  special  exceptions.  The  case  also  established 
that  corporations,  like  individuals,  have  the  right  to  inspect  public  records  under  Louisiana  law. 

Parties  Represented:  Amoco  Production  Company 

Columbia  Gas  Development  Corp. 

Energy  Ventures,  Inc. 

Columbia  Gulf  Transmission  Co. 

Diamond  Shamrock  Corp. 

Elf  Aquitaine  Oil  &  Gas  Co. 

Forest  Oil  Corp. 

Cabot  Corp. 

Northern  Michigan  Exploration  Co. 

Sun  Oil  Co. 

Sun  Pipe  Line  Co. 


-40 


61 1W 


Nature  of  Participation 
Date  of  Trial: 
Trial  Judge: 


Co-Counsel  for  Plaintiffs: 


Counsel  for  Louisiana  Board  of 
Professional  Engineers  and  Land 
Surveyors: 


140 

I  was  lead  counsel  in  the  trial  court  and  on  the  appeal. 

November  13,  198i 

Thomas  A.  Early.  Jr. 
Civil  District  Coun 
Division  "A" 
Parish  of  Orleans 
State  of  Louisiana 

Steven  W.  Usdin 
Stone,  Pigman,  Walther, 

Wittmann  &  Hutchinson 
546  Carondelet  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)581-3200 


Jarrell  E.  Godfrey,  Jr. 
L.  Howard  Scott,  III 
Andrew  Rinker,  Jr. 
Chaffe,  McCall,  Phillips, 

Toler  &  Sarpy 
2300  Energy  Centre 
HOOPoydras  Street 
New  Orleans,  Louisiana  70130 
Telephone:    (504)585-7000 


Counsel  for  Interveners,  Hosea 

Ware  Bailey,  Charles  L. 

Graves,  Robert  K.  Ritchie 

Henry  R.  Reeves,  and  McDermott, 

Inc.:  Harry  A.  Rosenberg 

Phelps,  Dunbar 
Texaco  Center 
400  Poydras  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)566-1311 


41  - 


141 


8.  English  v.  National  Collegiate  Athletic  Association  and  Tulane  University,  No.  83- 
14981  (Civil  District  Court  for  the  Parish  of  Orleans),  aff'd,  439  So.  2d  1218  (La. 
App.  4th  Or.  1983). 

In  English,  I  was  co-counsel  for  the  NCAA  in  the  trial  of  an  action  by  a  Tulane 
football  player  to  enjoin  his  ineligibility  determination  based  on  the  NCAA's  student  transfer 
rule.  The  significance  of  the  case  was  that  the  trial  court  and  the  court  of  appeal  upheld  the 
reasonableness  of  the  NCAA's  transfer  rule  against  charges  that  it  was  arbitrary,  capricious, 
discriminatory  and  violated  the  Louisiana  antitrust  laws.  The  case  was  intensely  litigated  over 
the  course  of  a  month  in  1983,  with  an  injunction  trial  lasting  several  days  and  several 
intermediate  stops  at  the  court  of  appeal  and  the  Louisiana  Supreme  Court. 


Nature  of  Participation: 


Co-counsel  for  the  NCAA  in  the  trial  court  and  on  the 
appeal. 


Trial  Date  on  Preliminary 
Injunction: 

Trial  Judge: 


September  21-29,  1983 

Honorable  Revius  O.  Ortique,  Jr. 
Civil  District  Court 
Parish  of  Orleans 
State  of  Louisiana 


Co-Counsel  for  NCAA: 


Phillip  A.  Wittmann  (lead) 

Wayne  J.  Lee 

Stone,  Pigman,  Walther, 

Wittmann  &  Hutchinson 
S46  Carondelet  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)581-3200 


George  Gangweir 

John  Black 

Swanson,  Midgley 

922  Walnut 

Suite  1500 

Kansas  City,  Missouri  64106 

Telephone:   (816)  842-6100 


42- 


142 


Counsel  for  John  English: 


Gibson  Tucker,  Jr.  (deceased) 

Jerald  N.  Ar.-ry 

Gilbert  V.  Andry,  III 

Andry  and  Andry 

710  Carondelet  Street 

New  Orleans,  Louisiana  70130 

Telephone:    (504)581-4334 


Counsel  for  Tulane  University: 


Harry  McCall,  Jr. 
Chaffe,  McCall,  Phillips, 

Toler  &  Sarpy 
2300  Energy  Centre 
1100  Poydras  Street 
New  Orleans,  Louisiana  70130\ 
Telephone:    (504)585-7000 


9.        Dow  Chemical  Co.  v.  Pitre,  et  al.,  Nos.  26,232,  26,620,  26,608  (18th  Judicial  District 
Court),  aff'd,  468  So.  2d  747  (La.  App.  1st  Or.  1985). 

In  Dow  Chemical,  I  represented  the  assessor  and  tax  recipient  bodies  in  Iberville 
Parish,  Louisiana  in  the  trial  of  three  consolidated  proceedings  which  sought  to  establish  the 
value  of  a  chemical  company's  industrial  property  and  pipelines  for  Louisiana  property  tax 
purposes.  The  case  involved  de  novo  review  of  certain  Louisiana  Tax  Commission  rulings  and 
dealt  with  significant  issues  concerning  an  assessor's  right  to  information  to  evaluate  property, 
the  validity  of  certain  industrial  property  valuation  methods,  the  role  of  the  Tax  Commission  in 
reviewing  assessments  and  the  constitutionality  of  certain  property  classifications  for  taxation 
purposes.  After  a  three-day  trial,  the  district  court  adopted  the  position  of  the  assessor  in  all 
respects.  This  resulted  in  an  increase  in  the  assessed  valuation  of  the  company's  property  by 
over  $9  million  over  the  Tax  Commission's  value  and  rejection  of  the  company's  claims  to 
another  $6  million  in  reduced  assessments.   The  district  court  decision  was  upheld  on  appeal. 


Nature  of  Participation: 


In  this  litigation,  I  acted  as  co-counsel  for  the  assessor, 
sheriff  and  tax  recipient  bodies,  participating  in  both  the 
trial  of  the  Tax  Commission  proceeding  and  the  retrial  on 
the  merits  in  the  district  court.  In  addition,  I  acted  as  co- 
counsel  on  the  appeal  and  was  primarily  responsible  for 
writing  the  appellate  brief. 


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61190/ 


143 


Parties  Represented: 


James  H.  Dupont,  Iberville  Parish  Assessor 

Freddie  H.  Pitre,  Sheriff,  Iberville  Parish 

Iberville  Parish  Police  Jury 

City  of  Plaquemine 

Atchafalaya  Basin  Levee  District 

Pontchartrain  Levee  District 

Iberville  Parish  School  Board 

Iberville  Parishwide  Drainage  District 

Iberville  Parish  Library 

Town  of  Maringouin 

Iberville  Parish  Gravity  Drainage  District  No.  1 

Town  of  Grosse  Tete  Waterworks  District  2 

Iberville  Parish  Fire  District  No.  1 


Co-Counsel: 


Counsel  for  Dow  Chemical 
Company: 


Michael  R.  Fontham  (lead) 
Stone,  Pigman,  Walther, 

Wittmann  &  Hutchinson 
546  Carondelet  Street 
New  Orleans,  Louisiana  70130 
Telephone:   (504)581-3200 


G.  William  Jarman 

Kean,  Miller 

Post  Office  Box  3513 

Baton  Rouge,  Louisiana   70821 

Telephone:    (504)  387-0999 


Counsel  for  Louisiana 
Tax  Commission: 


Date  of  Trial  Court  Proceedings: 
Trial  Judge: 


Robert  H.  Abbott,  III 
Post  Office  Box  3748 
Baton  Rouge,  Louisiana  70821 
Telephone:   (504)387-1221 

January  17-19,  1983 

Honorable  Ian  Claiborne 
18th  Judicial  District  Court 
Parish  of  Iberville 
State  of  Louisiana 


44 


144 


10.       CNG  Producing  Co.  v.  Indeek  Energy  Services,  Inc.,  et  al.,  C.A.  No.  93-0378  (E.D. 
La.). 

In  Indeek,  I  served  as  lead  counsel  for  defendants  Indeek  Energy  Services,  Inc., 
Indeek  Gas  Supply  Corp.,  Indeek  Energy  Services  of  Kirkwood,  Inc.  and  Indeck-Kirkwood 
Limited  Partnership  in  litigation  brought  by  a  gas  producing  company  for  the  alleged  anticipatory 
breach  of  a  multimillion  dollar,  long-term  contract  to  supply  natural  gas  for  cogeneration 
facilities  in  New  York.  Defendants  were  in  the  energy  cogeneration  business,  and  the  suit  was 
brought  in  the  aftermath  of  the  buyout  of  one  of  its  projects  in  development  by  a  New  York 
public  utility.  After  one  and  one  half  years  of  intense  discovery  and  other  pretrial  proceedings, 
as  well  as  three  days  of  mediation,  in  which  counsel  presented  all  of  the  factual  and  legal  issues 
involved  in  the  dispute,  the  case  was  amicably  resolved  in  April  1994.  The  significance  of  the 
case  is  that  it  involved  complex  issues  of  liability  and  damages  arising  in  highly  technical 
industries  and  that  the  parties  successfully  used  alternative  dispute  resolution  procedures,  first 
with  an  outside  mediator,  and  then  with  the  Magistrate  Judge,  to  effect  a  settlement.  The  use 
of  mediation  avoided  a  two-to-three  week  jury  trial,  which  would  otherwise  have  begun  in 
federal  court  in  New  Orleans  in  May  1994. 


Nature  of  Participation: 


Lead  trial  counsel  for  defendants 


Co-Counsel  for  Defendants, 
Indeek  Energy  Services, 
Inc.,  et  al. 


C.  Lawrence  Orlansky 

Stone,  Pigman,  Walther,  Wittmann  &  Hutchinson 

546  Carondelet  Street 

New  Orleans,  Louisiana  70130 

Telephone:   (504)581-3200 


Peter  John 

Hedlund,  Hanley  &  John 

233  South  Wacker  Drive,  Suite  5700 

Chicago,  Illinois  60606 

Telephone:   (312)441-8641 


Counsel  for  Plaintiff, 
CNG  Producing  Co. 


John  McCollam 

James  L.  Weiss 

Scott  O'Connor 

Douglas  McCollam 

Gordon,  Arata,  McCollam  &  Duplantis,  L.L.P. 

Suite  4000 

201  St.  Charles  Avenue 

New  Orleans,  Louisiana  70170 

Telephone:   (504)582-1111 


-45 


611W 


145 


Trill  Judge:  Honorable  Ginger  Berrigan 

United  States  District  Court 
Eastern  District  of  Louisiana 

Magistrate:  Honorable  Michaelle  Pitard  Wynne  (now  deceased) 

United  States  Magistrate 
United  States  District  Court 
Eastern  District  of  Louisiana 


19.  Legal  Activities:  Describe  the  most  significant  legal  activities  you  have  pursued, 
including  significant  litigation  which  did  not  progress  to  trial  or  legal  matters  that 
did  not  involve  litigation.  Describe  the  nature  of  your  participation  in  this  question, 
please  omit  any  information  protected  by  the  attorney-client  privilege  (unless  the 
privilege  has  been  waived.) 


During  my  career,  I  have  handled  more  than  100  litigated  matters  in  federal  and 
state  courts,  which  provided  valuable  experience,  even  when  they  did  not  result  in  trials 
on  the  merits.  My  nontrial  litigation  experience  has  involved  highly  complex  cases  in 
which  I  have  drafted  myriad  pleadings  and  briefs,  developed  litigation  plans  and 
schedules,  developed  computerized  data  bases,  taken  hundreds  of  depositions,  negotiated 
and  litigated  scores  of  discovery  disputes,  framed  issues  for  trial,  drafted  pretrial  orders, 
briefs  and  jury  instructions,  argued  dispositive  motions  and  participated  in  settlement 
negotiations.  This  experience  is  germane  because  the  ability  to  handle  litigation 
effectively  in  its  pretrial  stages  can  sometimes  obviate  the  need  for  a  trial  and  will  always 
result  in  a  better-tried  case,  if  a  trial  in  fact  takes  place.  Further,  since  1985,  I  have 
handled  a  number  of  federal  criminal  proceedings  in  the  area  of  antitrust  law  and  defense 
procurement  fraud,  which  involved  individuals  and  corporations.  This  experience  has 
familiarized  me  with  various  procedural  and  substantive  aspects  of  federal  criminal  law. 
I  have  also  worked  on  a  number  of  posttrial  appeals,  which  have  provided  retrospective 
insight  into  the  trial  process. 

Illustrative  of  some  of  the  other  litigation  I  have  handled  are  approximately  17 
antitrust  cases  that  were  settled  or,  in  which  I  obtained  dismissals,  prior  to  trial.  I  have 
also  handled  a  number  of  cases  involving  unfair  competition,  trademark  and  trade  name 
protection  issues.  For  example,  I  represented  the  NCAA  as  lead  counsel  in  protecting 
its  licensed  trademarks  in  connection  with  the  Final  Four  Basketball  Championship 
Games  in  New  Orleans  in  1993  and  in  1987.  I  have  done  similar  litigation  for  a  number 
of  other  businesses,  including  a  bottled  water  company,  a  hotel  chain,  and  a  nuclear 
pharmacological  concern.  I  have  also  handled  numerous  securities  fraud  cases  for 
plaintiffs  and  defendants.  For  example,  for  several  years,  I  was  lead  counsel  for  a  major 

-46-  mmmt 


146 


brokerage  firm  on  all  of  its  Louisiana  litigation,  and  I  was  co-counsel  for  the  insurgents 
in  hostile  takeover  litigation  involving  Louisiana  Land  &  Exploration  Company  in  1983. 
I  have  been  lead  counsel  in  several  oil  and  gas  contract  disputes  involving  matters  such 
as  farm-out  agreements,  diving  contracts,  pipeline  imbalances,  long-term  supply 
contracts,  and  exchange  agreements.  I  was  co-counsel  in  major  construction  litigation 
involving  the  runways  at  the  New  Orleans  airport,  and  I  have  handled  general  contract 
litigation  involving  matters  such  as  distributorship  agreements,  leases,  and  sales. 

In  addition  to  litigation  matters,  I  have  advised  clients  on  the  antitrust  implications 
of  a  number  of  mergers,  as  well  as  on  the  antitrust  issues  raised  by  professional  medical 
peer  review  and  the  establishment  of  alternative  health  care  delivery  systems. 


~  *t  "  utn 


147 

n.    FINANCIAL  DATA  AND  CONFLICT  OF  INTEREST  (PUBLIC) 


List  sources,  amounts  and  dates  of  all  anticipated  receipts  from  deferred  income 
arrangements,  stock,  options,  uncompleted  contracts  and  other  future  benefits  which 
you  expect  to  derive  from  previous  business  relationships,  professional  services,  firm 
memberships,  former  employers,  clients,  or  customers.  Please  describe  the 
arrangements  you  have  made  to  be  compensated  in  the  future  for  any  financial  or 
business  interest. 

Under  the  Stone,  Pigman  partnership  agreement,  upon  my  withdrawal,  my 
professional  corporation  will  be  entitled  to  my  partnership  percentage  (currently  2.63%) 
of  $100,000,  plus  my  pro  rata  share  of  net  distributable  income  during  the  year  of 
withdrawal,  plus  a  "guaranteed  payment"  of  50%  of  my  average  annual  distributions  for 
the  three  preceding  calendar  years.  Unless  the  firm  agrees  to  prepay  this  obligation,  the 
guaranteed  payment  plus  interest  is  payable  over  five  years  from  the  anniversary  of  the 
event  of  withdrawal.  I  understand  that  Carondelet  Title  Services,  Inc.,  a  corporation 
owned  by  Stone,  Pigman  partners,  will  repurchase  my  stock  for  a  nominal,  lump  sum 
when  I  withdraw  from  Stone,  Pigman. 

In  addition,  I  am  a  participant  in  the  Stone,  Pigman,  Walther,  Wittmann  & 
Hutchinson  401-K  Profit  Sharing  Plan.  The  firm  does  not  contribute  on  my  behalf  to  the 
plan.  I  make  contributions  to  a  self-directed  account  within  the  plan.  Upon  my 
withdrawal  from  the  firm,  I  will  make  no  more  contributions  to  the  plan.  At  that  time, 
I  may  leave  the  proceeds  of  my  retirement  account  in  the  Stone,  Pigman  plan  or  roll 
them  over  into  some  other  retirement  plan  vehicle. 


2.  Explain  how  you  will  resolve  any  potential  conflict  of  interest,  including  the 
procedure  you  will  follow  in  determining  these  areas  of  concern.  Identify  the 
categories  of  litigation  and  financial  arrangements  that  are  likely  to  present  potential 
conflicts-of-interest  during  your  initial  service  in  the  position  to  which  you  have  been 
nominated. 

In  resolving  potential  conflicts  of  interests,  I  will  be  vigilant  to  avoid  any 
appearance  of  partiality  I  will  recuse  myself  in  all  situations  required  by  the  Code  of 
Judicial  Conduct  and  make  disclosures  of  information  relevant  to  the  question  of 
disqualification,  even  if  I  believe  there  is  no  real  basis  for  disqualification.  When  a 
situation  is  doubtful,  I  will  exercise  my  judgment  on  the  side  of  recusal  to  avoid  even  the 
appearance  of  partiality 

I  will  recuse  myself  in  all  cases  in  which  members  of  my  former  law  firm  served 
as  attorneys  while  I  was  associated  with  the  firm,  until  my  financial  interest  in  the  firm 
has  been  liquidated,  or  two  years  from  my  withdrawal  from  the  firm,  whichever  is  latest. 


-48 


<u«v 


148 


In  addition,  I  will  recuse  myself  whenever  my  relationship  with  any  particular  member 
of  my  former  firm  is  so  close  as  to  impair  my  impartiality.  I  will  also  recuse  mvself  in 
cases  in  which  my  husband  or  my  brothe- -in-law  appears  as  an  attorney  In  addition,  I 
will  recuse  myself  in  cases  involving  attorneys  from  my  husband's  law  firm,  as  long  as 
my  husband  and  I  maintain  a  community  property  estate. 


3.         Do  you  have  any  plans,  commitments,  or  agreements  to  pursue  outside  employment, 
with  or  without  compensation,  during  your  service  with  the  court?   If  so,  explain. 

No. 


4.  List  sources  and  amounts  of  all  income  received  during  the  calendar  year  preceding 
your  nomination  and  for  the  current  calendar  year,  including  all  salaries,  fees, 
dividends,  interest,  gifts,  rents,  royalties,  patents,  honoraria,  and  other  items 
exceeding  $500  or  more.  (If  you  prefer  to  do  so,  copies  of  the  financial  disclosure 
report,  required  by  the  Ethics  in  Government  Act  of  1978,  may  be  substituted  here.) 

See  attached  financial  disclosure  report  (Attachment  A). 

5.  Please  complete  the  attached  financial  net  worth  statement  in  detail  (Add  schedules 
as  called  for). 

The  Financial  Statement  of  Sarah  S.  Vance  and  R.  Patrick  Vance  is  attached  (Attachment 
B).   Assets  and  liabilities  are  community  property  of  both  spouses. 

6.  Have  you  ever  held  a  position  or  played  a  role  in  a  political  campaign?  If  so,  please 
identify  the  particulars  of  the  campaign,  including  the  candidate,  dates  of  the 
campaign,  your  title  and  responsibilities. 

No. 


49- 


MHV 


149 


m.   GENERAL  (PUBLIC) 


1.  An  ethical  consideration  under  Canon  2  of  the  American  Bar  Association's  Code  of 
Professional  Responsibility  calls  for  "every  lawyer,  regardless  of  professional 
prominence  or  professional  workload,  to  find  some  time  to  participate  in  serving  the 
disadvantaged."  Describe  what  you  have  done  to  fulfill  these  responsibilities,  listing 
specific  instances  and  the  amount  of  time  devoted  to  each. 

With  other  members  of  my  firm,  I  have  represented  an  indigent  criminal 
defendant  in  an  aggravated  rape  case  and  a  minor  child  in  child  neglect  proceedings.  In 
addition,  I  served  for  several  years  on  the  Louisiana  State  Bar  Association's  Client 
Security  Fund  Committee,  which  met  periodically  to  approve  payments  to  clients  whose 
attorneys  misused  client  funds.  I  am  currently  working  with  the  American  Bar 
Association's  Section  of  Antitrust  Law  to  develop  an  appropriate  contribution  to  a  New 
Orleans  public  school  in  connection  with  the  ABA  s  Annual  Meeting  in  New  Orleans. 

My  law  firm  has  a  partnership  with  a  New  Orleans  public  school,  which  involves 
providing  ongoing  support  for  enrichment  activities  such  as  field  trips,  book  purchases, 
subscriptions,  and  special  appearances  by  the  New  Orleans  ballet.  The  firm  also  hires 
students  from  this  school  to  work  on  a  part-time  basis.  I  recently  gave  the  Award's 
Night  address  at  another  New  Orleans  public  school  and  will  participate  in  a  program  for 
Explorer  Scout's  on  career  opportunities  in  the  law. 

I  have  been  a  member  of  civic  groups  that  support  the  New  Orleans  Museum  of 
Art,  the  New  Orleans  Symphony  and  the  Audubon  Zoo  and  have  worked  on  various 
committees  and  fund-raising  efforts  of  these  groups.  Further,  I  have  given  hundreds  of 
hours  of  my  time  to  prepare  extensive  written  materials  and  to  teach  at  numerous  legal 
education  seminars  sponsored  by  national  and  state  bar  associations. 


The  American  Bar  Association's  Commentary  to  its  Code  of  Judicial  Conduct  states 
that  it  is  inappropriate  for  a  judge  to  hold  membership  in  any  organization  that 
invidiously  discriminates  on  the  basis  of  race,  sex,  or  religion.  Do  you  currently 
belong,  or  have  you  belonged,  to  any  organization  which  discriminates  —  through 
either  formal  membership  requirements  or  the  practical  implementation  of 
membership  policies?  If  so,  list,  with  dates  of  membership.  What  have  you  done 
to  try  to  change  these  policies? 

No.  From  1983  to  1986, 1  was  a  member  of  the  Krewe  of  Iris,  a  women's  Mardi 
Gras  parading  organization.  Traditionally,  Mardi  Gras  krewes  were  made  up  of  men, 
and  Iris  gave  women  an  opportunity  to  participate  in  Mardi  Gras  parades. 


-50 


61190/ 


150 


The  Committee  should  be  aware,  however,  that  since  1990  I  infrequently  played 
tennis  at  a  tennis  club  in  New  Orleans  of  which  my  husband,  R.  Patrick  Vance,  is  a 
member.  The  club  allows  both  men  and  women  to  be  members  but  does  not  allow 
women  members  to  own  voting  stock  in  the  club.  I  am  not  a  member,  but  am  entitled 
to  use  the  club's  courts  because  I  am  the  spouse  of  a  member.  Frustrated  by  the  realities 
that  resulted  from  the  club's  policies,  I  have  not  used  the  club's  courts,  except  on 
infrequent  occasions.  I  now  play  only  at  the  public  courts  which  I  have  used  regularly 
over  the  last  three  years. 

3.  Is  there  a  selection  commission  in  your  jurisdiction  to  recommend  candidates  for 
nomination  to  the  federal  courts?  If  so,  did  it  recommend  your  nomination?  Please 
describe  your  experience  in  the  entire  judicial  selection  process,  from  beginning  to 
end  (including  the  circumstances  which  led  to  your  nomination  and  interviews  in 
which  you  participated). 

There  is  no  selection  commission  in  my  jurisdiction.  In  early  1993, 1  sent  a  letter 
and  a  resume  to  Senator  J.  Bennett  Johnston,  asking  to  be  considered  as  a  candidate  for 
nomination  to  the  federal  district  court  bench  in  New  Orleans.  I  was  interviewed  by 
Senator  John  B.  Breaux  and  by  Senator  J.  Bennett  Johnston  on  October  28,  1993.  On 
January  31,  1994,  Senators  Breaux  and  Johnston  wrote  to  President  Clinton 
recommending  me  as  a  candidate  for  the  federal  district  court  bench  in  New  Orleans, 
Louisiana. 

On  April  7,  1994,  I  was  interviewed  by  Assistant  Attorney  General,  Eleanor  D. 
Acheson,  and  several  other  U.S.  Justice  Department  attorneys  in  Washington,  D.C. 
Shortly  thereafter,  in  April  1994, 1  was  interviewed  in  New  Orleans,  Louisiana  by  two 
representatives  of  the  Federal  Bureau  of  Investigation.  On  May  10,  1994,  I  was 
interviewed  in  New  Orleans,  Louisiana  by  a  representative  of  the  Standing  Committee 
on  the  Federal  Judiciary  of  the  American  Bar  Association.  On  June  8,  1994,  President 
Clinton  nominated  me  to  be  a  United  States  District  Judge  for  the  Eastern  District  of 
Louisiana. 

4.  Has  anyone  involved  in  the  process  of  selecting  you  as  a  judicial  nominee  discussed 
with  you  any  specific  case,  legal  issue  or  question  in  a  manner  that  could  reasonably 
be  interpreted  as  asking  how  you  would  rule  on  such  case,  issue,  or  question?  If  so, 
please  explain  fully. 

No. 


51  -  turn 


151 


5.         Please  discuss  your  views  on  the  following  criticism  involving  "judicial  activism." 

The  role  of  the  Federal  judiciary  within  the  Federal  government,  and  within  society 
generally,  has  become  the  subject  of  increasing  controversy  in  recent  years.  It  has 
become  the  target  of  both  popular  and  academic  criticism  that  alleges  that  the 
judicial  branch  has  usurped  many  of  the  prerogatives  of  other  branches  and  levels 
of  government.  Some  of  the  characteristics  of  this  "judicial  activism"  have  been  said 
to  include: 

a.         A  tendency  by  the  judiciary  toward  problem-solution  rather  than 
grievance-resolution; 


A  tendency  by  the  judiciary  to  employ  the  individual  plaintiff  as  a 
vehicle  for  the  imposition  of  far-reaching  orders  extending  to  broad 
classes  of  individuals; 


A  tendency  by  the  judiciary  to  impose  broad,  affirmative  duties  upon 
governments  and  society; 


d.        A    tendency    by    the   judiciary    toward    loosening    jurisdictional 
requirements  such  as  standing  and  ripeness;  and 


A  tendency  by  the  judiciary  to  impose  itself  upon  other  institutions  in 
the  manner  of  an  administrator  with  continuing  oversight 
responsibilities. 

Under  the  United  States  Constitution,  the  federal  judiciary  is  given 
limited  authority  in  the  tripartite  system  of  American  government.  While 
the  legislative  branch  is  empowered  to  make  laws,  and  the  executive 
branch,  to  enforce  them,  the  role  of  the  judicial  branch  is  to  apply  the  law 
to  cases  arising  within  the  confines  of  its  defined  jurisdiction. 

For  the  Constitutional  separation  of  powers  to  be  preserved,  the 
federal  judiciary  must  avoid  impinging  upon  the  functions  of  the  other  two 
branches  of  government.  Adherence  to  established  requirements  of 
standing  and  ripeness   is  therefore  necessary  to  assure  that  judicial 

61190/ 


152 


authority  is  exercised  within  the  constitutional  bounds  of  concrete  cases 
or  controversies.  Judicial  authority  should  not  be  exerted  over  the 
assertion  of  generalized  grievances  by  those  with  no  legally  protectable 
interest  in  the  outcome  of  the  case. 

Because  federal  courts  may  not  exercise  administrative  or 
legislative  power,  they  should  not  impose  relief  that  is  any  broader  than 
necessary  for  the  fair  resolution  of  the  disputes  between  the  parties  before 
them.  Federal  courts  should  also  respect  the  boundaries  of  the  federal 
system  and  not  intrude  upon  the  legitimate  province  of  state  government. 
When,  however,  a  federal  court  is  presented  with  a  controversy  properly 
within  its  jurisdiction,  it  should  not  shrink  from  deciding  it  because  it 
presents  an  issue  that  is  difficult,  controversial  or  inconvenient. 


53  -  6ii«o/ 


153 


ATTACHMENT  A 


Report    Required    by    tae   f.Mci 

FINANCIAL  DISCLOSURE  REPORT     BS58.rjyK-3Ci.fe *■ 

(5    U.S.C.A.    App.    6,     SS101-112} 


1.    Person    Reporting    [Last    nose,     first,    Riddle   lnitia 


Vance ,    Sarah    S. 


2.    Court  or  Organization 

United  States  District  Court 
Eastern  District  of  Louisiana 


3.    Date  of  Report 


June   15,    1994 


4.  Title   (Article  III  Judges  Indicate  active  or 

■enior  status;  Magistrate  fudges  indicate 
full-  or  part-tiae) 

Nominee    to    Federal    District    Court 


Report   Type    ( c!*.eck   appropriate   type) 

X    Soolnatlo.-.,    Date  6/8/94 

Initial       Annual       Final 


6.  Reporting  Period 

January  1  ,  1  993- 
June  1 ,  1 994 


7.  Chambers  or  Office  Addreee 

546  Carondelet  Street 

New  Orleans,  Louisiana   70130 


On  tne  basis  of  the  Information  contained  in  tbls  Report,  It 
Is,  is  sy  opinion.  In  cospllance  wltb  applicable  laws  end 
regulations  


Reviewing  Officer  Signature 


IMPORTANT   NOTES:      The   instructions     accompanying     this  form    must   be  followed.    Complete  all  parts, 
checking  the  NONE  box  for  each  section  where  you  have  no  reportable  information.    Sign    on  last  page. 


I.     POSITIONS.     (Reporting  individual  only,  see  pp.  7-8  of  Instructions.) 

POSITION  NAME  OF  ORGANIZATION/EN 


□ 


NONE        (No  reportable  positions) 


President,  Director,  Employee   Sarah  S.  Vance,  A  Professional  Law  Corporation. 

This  professional corporation  is  a  partner in 
the  law  firm  Stone,  Pioman,  Walther,  wittmann  & 

Hutchinson  ( "SPWWH ") .  ' 

(ContimiPfH 

II.     AGREEMENTS.     (Reporting  individual  only,  see  p.  8-9  of  Instructions.) 
DATE  PARTES  AND  TERMS 


□ 


NONE        (No   reportable    flgreeMnni 


January  1  ,  1  990 ,  Under  the  partnership  agreement  of  SPWWH.  I  am  entitled  noon 
as  amended  in   '  withdrawal  to  my  partnership  share  (currently  2.63%)  of 
1 991 ,1 992,  1 993  SI  00, 000,  plus  my  pro  rata  share  of  net  distributable  income 
ana  l y y 4         during  the  year  of  withdrawal,  plus  a  "guaranteed  payment"  of 

50%  of  my  average  annual  distributions  for  the  three  preceding 

( continued ) 
III.     NON-INVESTMENT  INCOME.     (Reporting  individual  and  spouse;  see  pp.  9-12  of  Instructions.) 


DATE 
(Honoraria  only) 


SOURCE  AND  TYPE 


GROSS  INCOME 
(yours,  not  spouse's) 


NONE        (Ho  reportable  rton-inveetsent   lneoae) 


1 994  to  date     Sarah  S.  Vance,  A  Professional  Law  Corporation-  S_ 
income  from  law  practice  with  SPWWH. 

Walker.  Waechter .  Poitevent.  Carrprp  A    S_ 


69.293.48 


1 992  to  date(S)  Jones 

3 

1993 


1993 


1993 


( Continued) 


Denegre  -  income  from  law  practice 

Sarah  S.  Vance.  A  Professional  Law  Cnrpnrat-  i  nn-  $  284 ,  640 

income  from  law  practice  with  SPWWH 

The  546  Company  -  income  from  office  building    $   7  r  877 

partnership 

Carondelet  Title  Services,  INc.  (a  Subchapter "s"$     481.00 

Corp.)  -  distributions  from  title  insurance  agency 


154 


n>m   o*   Faraon    Raportlng 

Data    of    Raport 

FINANCIAL  DISCLOSURE  REPORT  (confd) 

Vance ,    Sarah    S. 

June  1S.    1994 

IV.    REIMBURSEMENTS  and  GIFTS  --  transportation,  lodging,  food,  entertainment. 

(Includes  Ihoie  to  spouse  ■od  dependent  children;  u»e  the  parentheticals  "(S)'  and  "(DC)"  to  Indicate  reporuble 
reimbursements  and  gifts  received  by  spouse  and  dependent  children,  respectively.    See  pp.13-15  of  Instructions.) 

IlKSCKlPTION 


n 


source 

NONE       («o   -•..  t.    i.,-.,..i.i.    ■  •'  «.«i  •  •—'.■  ■   or  alft«) 
EXEMPT 


V.      OTHER   GIFTS.      (Includes  those  to  spouse  and  dependent  children;  use  the  parentheticals  "(S)"  and  "(DC)"  to 
Indicate  other  gifts  received  by  spouse  and  dependent  children,  respectively.  See  pp.15-16  of  Instructions.) 

SOURCE  DESCRIPTION  VALUE 

NONE        (Mo   • ■ -i •  '•  i-   gltta) 

1 
EXEMPT  


VI  LIABILITIES.  (Includes  those  of  spouse  and  dependent  children;  indicate  where  applicable,  person 
for  liability  by  using  the  parenthetical  "(S)"  for  separate  liability  of  spouse,  'IS)'  for  Joint  liability  or 
Individual  and  spouse,  and  "(DC)"  for  liability  of  a  dependent  child.    See  pp. 16-18  oflnstnictions.) 


a 


individual 'and  spouse,  and  "(DC)"  for  liability 
(KKI)ITOK 


dependent  child.    See  pp.] 

DKSCK1ITION 


responsible 
reporting 


VALUE    CODE* 


NONE       (no   ,.,....  i.i.i.    u.i.nn  i..| 
SPWWH     401 (K) 


Loan  from  profit-sharing  plan  (J) 
Profit  Sharing  Plan  -  Sarah  S.  Vance 


'Jgofgevgn^e5Arrg?S^e56neT^  Loan  from  profit-sharing  plan  (J)  K 


Profit  Sharing  Retirement  Plan- 
Robert  Patrick  Vance 


First  National  Bank  of 


'Commerce 


#* 7- 

3%  of 


SPWWH's  loans,  which  will  be 
released  upon  withdrawal  from 
SPWWH  (J) 


K  (Contingent ) 


VALUE    COOMl 


J   -   $13,000  or   laia 

H  -  32)0,001  to  $300,000 


K  -  $13,001  to  130,000 

O  -  $300,001  to  $1,000,000 


$30,001  to  $100,000 
Mora  than  $1,000,000 


H  a  $100,001  to  $230,000 


155 


FINANCIAL  DISCLOSURE  REPORT  (cont'd) 


Naaa   o'    Paraon    Paportlng 

Vance,    Sarah    S. 


Data  of  P-aport 

June  15,    1 994 


VII.    INVESTMENTS  and  TRUSTS  --  income,  value,  transactions,    (includes  those  or  spouse 

and  dependent  children;  see  pp.  18-27  or  Instructions.) 


a. 
Oaacrlptlon   of  Aaaata 
(including  truat  aaaata) 

Indlcata,   wbara  appllcabla,    ownax  of 
tha  aaaat   by   ualng   tna   paranthatlcal 
•(J)"    far   joint  ovnarahlp  of   raport- 
lng  Individual    and   apouaa,    "(3)      tor 
aaparata  ownaranlp  by  apouaa.    *(DCJ" 
for  ovsaxahlp  by  dapandant  child. 

Placa  "'!)■   aftar  aaeh  aaaat 
axanpt  Ixoa  prior  dlacioaura. 

B. 

Incooa 

during 

raportlng 

parlod 

c. 

oroaa  valua 

at  and  of 

raportlng 

parird 

D. 

Tranaactiona  during   raportlng   parlod 

(1) 

ABC, 

Coda1 
(A-B) 

(2) 

,Typ» 

div. , 

rant   or 

int.) 

(1) 

Valoa? 
Coda* 
(J-P) 

(2) 

Valua 

Katnod-, 

CodaJ 

IQ-W) 

Typa 

buy.aall. 

Bazaar, 

radaaip- 

tlonj 

If   not   aataapt   from  dlacloaura 

iata: 
HontB< 

(3) 
COoV 

(J-P) 

I*) 

Gailn* 
Cod*1 
lll-B) 

Xdaatity  of 

fir   prlvata 
tr*o  Motion) 

NONE     (Ho  raportabla 
lncoata,    aaaata,    or 
I               tranaactiona) 

EXE 

VFT 

1  Sarah  S.   Vance  IRA 

2  Louisiana,  as  follows:      (J) 

3  a)   948.7148  Merrill  Lynch 
Gov't.   Mortqaqe  Fund  Class 

A 

Div./ 
Int. 

J 

T 

4  B 

5  b)   1212.9800  Merrill  Lynch 
Retirement  Reserves 

A 

Div./ 
Tnf. 

J 

T 

6  g)   270  U.S.   Treasury  Strips 

tone 

ttone 

J 

T 

'  2.     Sarah  S.   Vance  IRA 
Ftol lover,  Merrill  Lynch  - 

6  New  Orleans,   Louisiana,   as 
follows:      (J) 

« a)    400.0000FEMSA  B  CP 

A 

Div./ 
Int. 

J 

T 

>°b)    1626.7060  Merrill  Lynch 
Federal  Securities  Trust 

A 

Div./ 
Int. 

K 

T 

"Class  B 

12c)   538.6370  Merrill  Lynch 
Senior  Floatmq  Rate  Fund 

A 

Div./ 

Int. 

J 

T 

nd)   1100.0000  U.S.   Treasury 
Strips  Zero 

tone 

None 

K 

T 

"e)   Sarah  Lee  Common 

tone 

None 

J 

T 

is 

(Continued) 

16 

17 

ii 

19 

20 

1  lncmaa/caln  Codaa:        A-51,000  or  laaa                   B-31.001  to  $2,300                   c-32,501  to  5,000                      D-35,001  to  SIS. 000 
fSaa    Col.    81    *    D4)         E-S15.001    to    35COOO             fS30,001    to    5100. 000                C-3100.001    to    51.000.000        B-Hora    than    31.000.000 

?    Valua   Codaa:                        J-S15.660   or    laaa                     K-ilS.OOi    to    sSO.Oji                  1-530.001    to    3100.000                M-5100,001    to    3250,000 
(Saa  Col.    CI    a   03)        B-3250.001    to   5300,000       O-3500.001    to  31.0C0.000        P-Hora   than   31.000,000 

1   Valua  Katood   Codaa:      Q-Appraiaal                                 R-Coat    ( raal   aatata   only)      S"Aaaaaaaant                                   T-Caah/Markat 
(Saa  Col.    C2)                   U-Book  Valua                              V-Othar                                             V-Eatljaatad 

156 


FINANCIAL  DISC      'SURE  REPORT  (cont'd) 


NAae    of    Parton    Bepor-.lng 

Vance,    Sarah   S. 


Date    of    Report 

June  1.5  ,    1994 


VIII.    ADDITIONAL  INFORMATION  or  EXPLANATIONS,    (indicate  part  of  Report) 


IX.    CERTIFICATION. 

In  compliance  with  the  provisions  of  28  U.S.C  §  455  and  of  Advisory  Opinion  No.  57  of  the  Advisory  Committee  on 
Judicial  Activities,  and  to  the  best  of  my  knowledge  at  the  time  after  reasonable  inquiry,  I  did  not  perform  any  adjudicatory 
function  in  any  litigation  during  the  period  covered  by  this  report  in  which  I,  my  spouse,  or  my  minor  or  dependent  children 
had  a  financial  interest,  as  defined  in  Canon  3C(3)(c),  in  the  outcome  of  such  litigation. 

I  certify  that  all  information  given  above  (including  information  pertaining  to  my  spouse  and  minor  or  dependent  children, 
if  any)  is  accurate,  true,  and  complete  to  the  best  of  my  knowledge  and  belief,  and  that  any  information  not  reported  was 
withheld  because  it  met  applicable  statutory  provisions  permitting  non-disclosure. 

I  further  certify  that  earned  income  from  outside  employment  and  honoraria  and  the  acceptance  of  gifts  which  have  been 
reported  are  in  compliance  with  the  provisions  of  5  U.S.C.A  app.  7,  §  501  et.  seq.,  5  U.S.C  §  7353  and  Judicial  Conference 
regulations. 


J^^J.    J-^lc^uJ? 


Date 


W'VY 


Signature  _ 

NOTE-     ANY  INDIVIDUAL  WHO  KNOWINGLY  AND  WILFULLY  FALSIFIES  OR  FAILS  TO  FILE  THIS  REPORT 
MAY  BE  SUBJECT  TO  CIVIL  AND  CRIMINAL  SANCTIONS  (5  U.S.C.A  APP.  6,  §  104,  AND  18  U.S.C.  §  1001.) 


FILING  INSTRUCTIONS: 


Mail  signed  original  and  3  additional  copies  to: 


Judicial  Ethics  Committee 
Administrative  Office  of  the 

United  States  Courts 
Washington,  DC   20544 


157 


Name  of  Person  Reporting:   Vance,  Sarah  S. 

Date  of  Report:    June  15,  1994 


I.         POSITIONS.  (Continued) 

Position  Name  of  Organization/Entity 

2.         Partner  The  546  Company  (a  partnership  of  Stone,  Pigman 

partners  formed  to  develop  and  lease  the  office 
building  occupied  by  the  firm). 


80856; 


158 


Name  of  Person  Reporting:   Vance,  Sarah  S. 

Date  of  Report:    June  15,  1994 


II.        AGREEMENTS.  (Continued) 

Date 

1.  January      1, 

1  9  9  0  ,  a  s 
amended  in 
1991,  1992, 
1993  and  1994 
(Continued) 


Parties  and  Terms 

calendar  years.  Unless  the  firm  agrees  to  prepay 
this  obligation,  the  guaranteed  payment  plus  interest 
is  payable  over  five  years  from  the  anniversary  of 
the  event  of  withdrawal.  In  addition,  I  am  a 
participant  in  the  SPWWH  401-K  Profit  Sharing 
Plan.  The  firm  does  not  contribute  on  my  behalf  to 
the  plan.  I  make  contributions  to  a  self-directed 
account  within  the  plan.  Upon  my  withdrawal  from 
the  firm,  I  will  make  no  more  contributions  to  the 
plan. 


2. 


November 
1  990, 
amended 


8, 
a  s 


Under  the  terms  of  the  partnership  agreement  of 
The  546  Company,  all  rights  to  payments  from  the 
partnership  terminate  upon  withdrawal  from  the 
partnership,  which  will  occur  upon  withdrawal  from 
the  law  firm  partnership.  Unless  The  546  Company 
partners  agree  otherwise,  the  partnership  agreement 
provides  for  partners  to  remain  liable  for  the 
partnership's  bank  loan  and  building  lease  for  18 
months  following  withdrawal  from  the  partnership. 


80836/ 


159 


Name  of  Person  Reporting:   Vance,  Sarah  S. 

Date  of  Report:    June  15,  1994 

HI.       NON-INVESTMENT  INCOME.  (Continued) 

Date  Source  and  Type  Gross  Income 


1992  Sarah  S.  Vance,  A  Professional  Law  5238,296 

Corporation    -    income    from    law 
practice  with  SPWWH. 


1992  The  546  Company  -  income  from  $    2,255 

office  building  partnership 


1992  Carondelet  Title   Services   Inc.    (a  $     1,732 

Subchapter  "S"  Corp.)  -  distributions 
from  title  insurance  agency 


-3- 


80856/ 


160 


Name  of  Person  Reporting:   Vance,  Sarah  S. 

Date  of  Report:    June  15,  1994 


VI.       LIABILITIES.  (Continued) 


Creditor 

First  National  Bank  of 
Commerce 


First  National  Bank  of 
Commerce 


Tufts  Oil  and  Gas  - 
III  Limited 
Partnership;  Crutcher 
Oil  and  Gas  -  III 
Limited  Partnership 


Description 

Contingent  liability  under  guarantee 
of  pro  rata  share  of  Jones,  Walker's 
line  of  credit  (J) 

Contingent  liability  under  guarantee 
of  110%  of  2.64%  of  The  546 
Company's  industrial  revenue  bond 
financing  (J) 

Contingent  liability  under  guarantee 
of  150%  of  2.64%  of  110%  of  The 
546  Company's  lease  obligations  (J) 


Value  Code 

K  (Contingent) 

L  (Contingent) 


K  (Contingent) 


80836/ 


161 


Name  of  Person  Reporting:    Vance,  Sarah  S. 

Date  of  Report:    June  15,  1994 


VH.     INVESTMENTS  and  TRUSTS  (Continued) 


A. 
Description  of  Assets 

B.  Income 

C.  Gross  Value 

(1) 
Amt.  Code 

(2) 
Type 

(1) 

Value 
Code 

(2) 

Value 

Method 

Code 

3.         SPWWH  401  (K)  Profit 
Sharing  Plan  -  Sarah  S. 
Vance, 

First  National  Bank  of 
Commerce,  New 
Orleans,  Louisiana,  as 
follows:  (J): 

(a)        4825  GNMA  II 

A 

Div./Int. 

J 

T 

(b)        79180  Money 
Mkt 

A 

Int. 

L 

T 

(c)        350.0000  Nestle 
S.A.  Common 

A 

Div. 

J 

T 

(d)       50,000  Note  from 
SSV 

A 

Int. 

K 

T 

4.         R.  Patrick  Vance  IRA, 
Merrill  Lynch,  New 
Orleans,  Louisiana,  as 
follows  (J): 

(a)        400.0000  FEMSA 
BCP 

A 

Div./Int. 

J 

T 

-5 


80856/ 


162 


Name  of  Person  Reporting:   Vance,  Sarah  S. 

Da::  of  Report:    June  15,  1994 


A. 
Description  of  Assets 

B.  Income 

C.  Gross  Value 

(1) 
Amt.  Code 

(2) 
Type 

(1) 

Value 
Code 

(2) 

Value 

Method 

Code 

(b)       712.0000  Merrill 
Lynch  Gov't. 
Mortgage  Fund 
Class  B 

A 

Div./Int. 

J 

T 

(c)        270.0000  U.S. 
Treasury  Strips 
Zero 

None 

None 

J 

T 

5.         Jones,  Walker, 

Waechter,  Poitevent, 
Carrere  &  Denegre  Profit 
Sharing  Retirement  Plan 
-  R.  Patrick  Vance 
Fidelity  Investments,  as 
follows  (J): 

(a)        1566  Balanced 
Fund 

A 

Div. 

K 

T 

(b)       950  Growth  & 
Income 

A 

Div. 

K 

T 

(c)        735  Growth  Co. 

B 

Div. 

K 

T 

(d)       298  Magellan 

B 

Div. 

K 

T 

(e)        780  Overseas 

A 

Div. 

K 

T 

(f)         124.177  Ret 

Gov't.  (Money 
Market) 

D 

Div. 

M 

T 

(g)        967  U.S.  Bond 

A 

Int. 

J 

T 

6- 


80856/ 


163 

Name  of  Person  Reporting:    Vance,  Sarah  S. 

Date  of  Report:    June  15,  1994 


A. 
Description  of  Assets 

B.  Income 

C.  Gross  Value 

(1) 
Amt.  Code 

(2) 
Type 

(1) 

Value 
Code 

(2) 

Value 

Method 

Code 

(h)        50,000  Note  from 
RPV 

A 

Int. 

K 

T 

6.         R.  Patrick  Vance  and 
Sarah  S.  Vance  Cash 
Management  Account, 
Merrill  Lynch,  New 
Orleans,  Louisiana,  as 
follows  (J): 

(a)        500  AMI 
Common 

A 

Div. 

J 

T 

(b)       42  Exxon 
Common 

A 

Div. 

J 

T 

(c)        840  Merrill  Lynch 
MUN.  BND 

A 

Div. 

J 

T 

(d)        145  Merrill  Lynch 
MUN.  INC. 

A 

Div. 

J 

T 

(e)        Flagship 

Louisiana  Tax 
Exempt  Fund 
Class  C 

None 

None 

J 

T 

7.         348.812  First  Commerce 
Corp.  Common  (J) 

A 

Div. 

J 

T 

7  - 


80856/ 


164 


Name  of  Person  Reporting:   Vance,  Sarah  S. 

Date  of  Report:    June  15,  1994 


A. 
Description  of  Assets 

B.  Income 

C.  Gross  Value 

(1) 
Amt.  Code 

(2) 
Type 

(1) 

Value 
Code 

(2) 

Value 

Method 

Code 

8.         Robert  Patrick  Vance,  Jr. 
Trust,  Ann  M.  Ourso, 
Trustee, 

Merrill  Lynch,  New 
Orleans,  Louisiana,  as 
follows  (DC): 

(a)        Cash 

A 

Int. 

J 

T 

(b)        128.1079 
Delaware 
DELCAP  Fund 

A 

Div./Int. 

J 

T 

(c)        460.000  Gov't. 
Trust  Certificates 
Zero  Coupons 

None 

None 

K 

T 

(d)        163.3806 

SMALLCAP 
World  Fund  Inc. 

A 

Div./Int. 

J 

T 

(e)        470.0000  TIGR 
Principal  Series 
14  Zero 

None 

None 

K 

T 

9.         The  546  Company 

Partnership  Interest  (J), 
New  Orleans,  Louisiana 

B 

Distribution 

J 

U 

10.       Life  Insurance  - 

Connecticut  Mutual  (J) 

None 

None 

J 

T 

80856/ 


165 

Name  of  Person  Reporting:   Vance,  Sarah  S. 

Date  of  Report:    June  15,  1994 


A. 
Description  of  Assets 

B.  Income 

C.  Gross  Value 

(1) 
Amt.  Code 

(2) 
Type 

(1) 

Value 
Code 

(2) 

Value 

Method 

Code 

11.       Sarah  S.  Vance  and  R. 
Patrick  Vance  Checking 
and  Money  Market 
Accounts  (J),  First 
National  Bank  of 
Commerce,  New 
Orleans,  Louisiana 

A 

Int. 

K 

T 

12.       Carondelet  Title 

Insurance  Agency  Stock 

A 

Distribution 

J 

U 

80136/ 


166 


ATTACHMENT  B 


FINANCIAL  STATEMENT  OF 

SARAH  S.  VANCE  AND  R.  PATRICK  VANCE, 

AS  OF  MARCH  12,  1994 

ASSETS 

Cash  on  Hand  and  in  Banks 

$    22,586.19 

U.S.  Government  Securities 

Listed  Securities  (See  Schedule  One) 

28,538.00 

Unlisted  Securities 

Accounts  and  Notes  Receivable: 

Real  Estate  Owned  (1821  State  Street,  New  Orleans, 

Louisiana  70118) 

620,000.00 

Real  Estate  Mortgages  Receivable 

Autos  and  Other  Personal  Property 

215,000.00 

Cash  Value-Life  Insurance 

5,382.00 

OTHER  ASSETS 

IRA/Keogh  Portfolios:    (See  Schedule  One.) 

Merrill  Lynch  ("ML")  SSV  IRA 

16,824.00 

ML  SSV  401(k) 

62,383.00 

First  National  Bank  of  Commerce  SSV  401  (k) 

116,938.00 

ML  RPV  IRA 

16,743.00 

Fidelity  Investments  (RPV  Profit  Sharing 
Retirement  Plan) 

286,814.00 

The  546  Company 

1,000.00 

TOTAL  ASSETS 

$1,392,208.19 

81229/ 


167 


LIABILITIES 

Notes  Payable  to  Banks  -  Secured 

Notes  Payable  to  Banks  -  Unsecured 

Notes  Payable  to  Relatives 

Notes  Payable  to  Others  (See  Schedule  Two,  Note  1.) 

96,803.45 

Accounts  and  Bills  Due 

17,195.00 

Unpaid  Income  Tax 

Other  Unpaid  Tax  and  Interest 

Real  Estate  Mortgages  Payable  to  Premier  Bank 

478,488.59 

Chattel  Mortgages 

Other  Debts 

TOTAL  LIABILITIES 

NET  WORTH 

TOTAL  LIABILITIES  AND  NET  WORTH 

$   592,487.04 

759,721.15 

1,392,208.19 

CONTINGENT  LIABILITIES 

GENERAL 
INFORMATION 

As  Endorser,  Comaker  or  Guarantor  (See  Schedule 
Two,  Notes  2  and  3.) 

Are  any  assets  pledged? 
No,  except  for  mortgage 
on  1821  State  Street. 

On  Leases  or  Contracts  (See  Schedule  Two,  Note  3.) 

Are  you  defendant  in  any 
suits    or    legal    actions? 
(See  Schedule  Two,  Note 
4.) 

Legal  Claims  -  None 

Have     you     ever    taken 
bankruptcy?   No. 

Provision  for  Federal  Income  Tax  -  None 

Other  Special  Debt  -  None 

2- 


81229/ 


168 


Robert  Patrick  Vance.  Jr. 

Robert  Patrick  Vance,  Jr.  is  the  beneficiary  of  a  trust  with  assets  worth 
$63,501.50.    These  assets  are  itemized  on  Sch.    ule  One,  attached. 


3  -  81229/ 


169 


SCHEDULE  ONE 

TO 

MARCH  1994  FINANCIAL  STATEMENT 

OF 

SARAH  S.  VANCE  AND  R.  PATRICK  VANCE 

Portfolio:   Merrill  Lynch  SSV  IRA 
Unsold  Assets: 

948.7148    Merrill    Lynch    Government 
Mortgage  Fund  Class  B 

$6,498.70 

5.2300  Merrill  Lynch  Federal  Securities 
Trust  Class  A 

52.20 

1212.9800    Merrill    Lynch    Retirement 
Reserves 

1,213.00 

270.0000  U.S.  Treasury  Strips  Zero 

9,060.39 

TOTALS: 

$16,824.26 

Portfolio:   Merrill  Lynch  SSV  401  (k) 
Unsold  Assets: 

400.0000  FEMSA  B  CP 

$2,345.70 

1626.7060     Merrill     Lynch     Federal 
Securities  Trust  Class  B 

16,071.86 

1554.7800    Merrill    Lynch    Retirement 
Reserves 

1,554.78 

538.6370  Merrill  Lynch  Senior  Floating 
Rate  Fund 

5,398.76 

1100.0000  U.S.  Treasury  Strips  Zero 

37,011.70 

TOTALS: 

$62,382.80 

81229/ 


170 


1 

Portfolio:   First  National  Bank  of  Commerce  SSV  401(k) 
Unsold  Assets: 

5521.0000  GNMA  II 

6,038.87 

45780.0700  MONEY  MKT 

45,780.07 

350.0000  NESTLE  S.A 

15,119.30 

50,000.00  NOTE  from  SSV 

50.000.00 

TOTALS: 

$116,938.24 

Portfolio:   Merrill  Lynch  RPV  IRA 
Unsold  Assets: 

400.0000  FEMSA  B  CP 

$2,345.70 

712.0000    Merrill    Lynch    Government 
Mortgage  Fund  Class  B 

4,877.20 

5.1410  Merrill  Lynch  Federal  Securities 
Trust  Class  A 

51.31 

158.5800    Merrill     Lynch    Retirement 
Reserves 

158.58 

270.0000  U.S.  Treasury  Strips  Zero 

9,309.87 

TOTALS: 

$16,742.66 

Portfolio:   Fidelity  Investments  -  RPV 
Unsold  Assets: 

802.8940  BALANCED  FUND 

$10,750.75 

503.1880  GROW  &  INC. 

11,180.84 

397.3740  GROWTH  CO. 

11,547.69 

162.6270  MAGELLAN 

11,522.12 

428.9020  OVERSEAS 

11,764.78 

169581.0300  RET  GOV'T 

169,581.03 

-5 


81229/ 


171 


951.5390  U.S.  BOND 

10,466.93 

50,000.00  NOTE  from  RPV 

50,000.00 

TOTALS: 

$286,814.14 

Portfolio:    MERRILL  Lynch 
Unsold  Assets: 

500.0000  AMI 

$3,000.00 

42.0000  EXXON 

2,761.50 

840.0000  Merrill  Lynch  MUN  BND 

9,248.40 

145.0000  Merrill  Lynch  MUN  INC 

1,523.95 

TOTALS: 

$16,533.85 

Portfolio:   FstCommCorp 
Unsold  Assets: 

321.1850  FSTCOMMCOR 

$12,003.78 

TOTALS: 

$12,003.78 

Portfolio:   RPV  Jr.  TRUST 
Unsold  Assets: 

5270.3100  CASH 

$5,270.31 

128.1079    Delaware    Group    DELCAP 
Fund 

3,390.00 

460.0000    GOVT   TRUST   Certificates 
Zero  Coupons 

27,359.42 

163.3806  SMALLCAP  World  Fund  Inc. 

3,881.92 

470.0000  TIGR  Principal  Series  14  Zero 

23,600.11 

TOTALS: 

$63,501.50 

-6 


81229/ 


172 


SCHEDULE  TWO 

NOTES  TO  MARCH,  1994  FINANCIAL  STATEMENT 

OF 
SARAH  S.  VANCE  AND  R.  PATRICK  VANCE 


NOTE  1. 

Notes  Payable  to  Others  consists  of  two  notes  of  approximately  equal  amounts 
owed  to  the  respective  profit-sharing  plans  of  SSV  and  RPV. 

NOTE  2. 


RPV  as  a  partner  in  JWWPCD  has  guaranteed  $42,000  of  the  FNBC  $1,500,000 
line  of  credit  to  the  firm. 

SSV  has  guaranteed  150%  of  her  2.63%  partnership  share  of  $1,235,000  in 
loans  from  FNBC  to  the  partnership  of  Stone,  Pigman,  Walther,  Wittmann  & 
Hutchinson.    She  has  been  advised  that  when  she  withdraws  from  the  firm,  her 
guaranty  will  be  released,  provided  there  are  no  defaults  on  the  loans. 

NOTE  3. 


This  information  is  provided  in  connection  with  SSV's  2.64%  partnership 
interest  in  The  546  Company  Partnership  and  related  personal  liability. 

The  interest  in  The  546  Company  is  carried  with  a  nominal  value  of  $1,000  on 
the  Financial  Statement. 


7  - 


173 


The  546  Company  lease  and  financing  documents  provide  the  following  liability 
to  the  partners: 

1.  Lease.    The  lease  to  the  546  Company  is  "in  rem"  except  for  the 
express  guaranty  set  forth  in  the  Guaranty  Agreement.  Therein, 
the  law  firm  of  SPWWH  guarantees  the  obligations  of  the  lessee, 
The  546  Company,  but  again  only  "in  rem".  The  individual 
partners  of  The  546  Company  guarantee  the  lease  on  a  pro  rata 
basis  for  a  "maximum  amount"  for  each  Guarantor.  The 
Maximum  Amount  is  the  following  formula: 

110%  [P  x  (150%  Annual  Base  Rent)] 
The  letter  "P"  is  the  individual  Guarantor's  percentage  in  The  546 
Company.  "P"  will  change  from  time-to-time  as  new  partners  are 
admitted  to  The  546  Company.   The  current  annual  lease 
obligation  is  $465,000.   The  individual  Guarantors  also  guarantee 
in  solido  the  payment  of  any  deductible  amounts  not  covered  by 
insurance  or  any  losses  resulting  from  failure  to  maintain  the 
required  insurance,  as  well  as  the  completion  of  the  initial 
renovations.  However,  as  a  practical  matter,  this  exposure  seems 
minimal. 

2.  Industrial  Revenue  Bond  Financing.  The  Industrial  Revenue  Bond 
Financing  is  an  "in  rem"  obligation  of  The  546  Company. 
However,  a  Guaranty  agreement  obligates  the  individual  partners 
and  the  law  firm  of  SPWWH  as  set  forth  herein  for  the  obligation. 
The  law  firm  guarantees  the  obligations  of  The  546  Company  but 
only  on  an  "in  rem"  basis  with  regard  to  the  assets  of  the  law 
firm.    Each  individual  Guarantor  is  obligated  only  to  the  extent  of 
110%  of  the  amount  determined  by  multiplying  the  partnership 
percentage  of  the  individual  Guarantor  in  The  546  Company  times 
the  aggregate  outstanding  principal  balance  of  the  bonds.  If  the 
percentages  of  the  partners  change,  the  original  percentages  apply 
until  the  First  National  Bank  of  Commerce  approves  an 
amendment  to  the  Guaranty  Agreement.   The  principal  balance  on 
the  bonds  is  $2.7  million. 


-8 


81229/ 


174 


NOTE  4. 

RPV  has  been  named  as  a  defendant  in  a  civil  action  for  alleged  defamation  filed 
in  civil  district  court  for  the  parish  of  Orleans.  The  plaintiff  is  an  attorney/party 
who  was  involved  in  litigation  personally  adverse  to  RPV's  client.  The  plaintiff 
lost  the  litigation  and  filed  this  suit  along  with  several  complaints  against  RPV. 
All  of  the  other  litigation  filed  by  the  plaintiff  against  RPV  has  been  dismissed 
adverse  to  the  plaintiff.  RPV  believes  that  this  lawsuit  has  no  merit  and  is  worth 
nothing  as  a  contingent  liability.  The  suit  is  currently  dormant. 


9  -  81229/ 


175 


I.   BIOGRAPHICAL  INFORMATION  (PUBLIC) 

1.  Full  name  (Include  any  former  names  used.) 

William  Curtis  Bryson 

2.  Address:  List  current  place  of  residence  and  office 
address (es) . 

Home:   783  3  Aberdeen  Rd. 

Bethesda,  Md.  20814 

Office:  Office  of  the  Associate  Attorney  General 
U.S.  Department  of  Justice 
Washington,  D.C.  20530 

3.  Date  and  place  of  birth. 

August  19,  1945,  in  Houston,  Texas. 

4.  Marital  Status  (include  maiden  name  of  wife,  or  husband's 
name).  List  spouse's  occupation,  employer's  name  and  business 
address (es) . 

Spouse's  name:  Julia  Penny  Clark 

Spouse's  occupation:   Lawyer 

Name  of  spouse's  employer  and  spouse's  business  address: 

Bredhoff  &  Kaiser 

1000  Connecticut  Avenue,  N.W. 

Washington,  D.C.  20036 

5.  Education:  List  each  college  and  lav  school  you  have  attend- 
ed, including  dates  of  attendance,  degrees  received,  and  dates 
degrees  were  granted. 

Attended  Harvard  College,  1963-1969.   Awarded  A.B.  magna  cum 
laude  in  1969. 

Attended  University  of  Texas  School  of  Law,   1970-1973. 
Awarded  J.D.  in  1973. 


176 


6.  Employment  Record;  List  (by  year)  all  business  or  profession- 
al corporations,  companies,  firms,  or  other  enterprises, 
partnerships,  institutions  and  organizations,  nonprofit  or 
otherwise,  including  firms,  with  which  you  were  connected  as 
an  officer,  director,  partner,  proprietor,  or  employee  since 
graduation  from  college. 

1969-1970:   Newsday  (reporter  for  Long  Island,  N.Y., 
newspaper) . 

1972:  O'Melveny  &  Myers,  Los  Angeles,  Calif,  (summer  intern 
for  law  firm  during  law  school) . 

1973-1975:   U.S.  Government.   Law  clerk  to  Hon.  Henry 
Friendly,  U.S.  Court  of  Appeals  for  the  Second  Circuit 
(1973-1974).    Law  clerk  to  Hon.  Thurgood  Marshall,  U.S. 
Supreme  Court  (1974-1975). 

1975-1978:  Miller,  Cassidy,  Larroca  &  Lewin,  Washington,  D.C. 
(associate  with  law  firm) . 

1978-present:  U.S.  Government,  U.S.  Department  of  Justice. 
Assistant  to  the  Solicitor  General  (1978-1979);  Chief, 
Appellate  Section,  Criminal  Division  (1979-1982);  Special 
Counsel,  Organized  Crime  and  Racketeering  Section,  Criminal 
Division  (1982-1986);  Deputy  Solicitor  General  (1986-1994); 
Deputy  Associate  Attorney  General  and  Acting  Associate 
Attorney  General  (March  1994-present) . 

7.  Military  Service:  Have  you  had  any  military  service?  If  so, 
give  particulars,  including  the  dates,  branch  of  service,  rank 
or  rate,  serial  number  and  type  of  discharge  received. 

No. 

8.  Honors  and  Awards:  List  any  scholarships,  fellowships, 
honorary  degrees,  and  honorary  society  memberships  that  you 
believe  would  be  of  interest  to  the  Committee. 

Harvard  College: 

John  Harvard  Scholarship  "in  recognition  of  academic 
achievement  of  the  highest  distinction." 

Detur  Prize  based  on  cumulative  academic  record. 


177 


University  of  Texas  School  of  Law: 

Three-year  academic  scholarship 

Elected  to  Chancellors  organization,  served  as  Grand 
Chancellor  (membership  based  on  academic  standing) . 

Department  of  Justice: 

1983:   Department  of  Justice  Special  Commendation  Award 

1983:  Department  of  Justice  John  Marshall  Award  for 
Outstanding  Legal  Achievement  in  Appellate  Advocacy.  One 
awarded  annually  within  the  Department. 

1984:  Federal  Bar  Association,  25th  Annual  Tom  C.  Clark 
Award.  One  awarded  annually  to  federal  agency  lawyer  for 
outstanding  service  as  a  government  lawyer. 

1985:  Department  of  Justice  Exceptional  Service  Award. 
Department's  highest  award.  One  awarded  annually  to  a 
Justice  Department  attorney  for  exceptional  service  to 
the  Department. 

1990:  First  recipient  of  Beatrice  Rosenberg  Award.  One 
awarded  annually  by  the  D.C.  Bar  for  outstanding  service 
as  a  government  attorney. 

1991:  Presidential  Distinguished  Rank  Award.  Highest 
award  given  to  senior  executive  service  employees. 

1993:   Attorney  General's  Award  for  Management. 

1993:  University  of  Texas  Law  School  Foundation,  Public 
Service  Award. 


Bar  Associations:  List  all  bar  associations,  legal  or 
judicial-related  committees  or  conferences  of  which  you  are  or 
have  been  a  member  and  give  the  titles  and  dates  of  any 
offices  which  you  have  held  in  such  groups. 

D.C.  Bar:  1975  to  present. 

Served  on  Nominations  Committee  of  D.C.  Bar,  1988-1989 
(committee  selects  candidates  for  offices  in  the  D.C.  Bar) . 

Served  on  Continuing  Legal  Education  Committee  of  D.C.  Bar, 
1990-1992. 

American  Law  Institute,  elected  to  membership  in  1989; 
sustaining  member  1989  to  present. 


178 


Court  of  Military  Appeals:  member  of  committee  to  redraft  the 
rules  of  the  Court  of  Military  Appeals,  1979-1980. 

Conference  on  the  Rule  of  Law  (1990) :  member  of  a  delegation 
to  the  Soviet  Union  to  confer  with  Soviet  officials  on  the 
rule  of  law  as  applied  in  the  American  and  Soviet  legal 
systems.   Delegation  was  led  by  the  Deputy  Attorney  General. 

Anglo-American  Legal  Exchange  (1980) :  member  of  a  delegation 
of  approximately  a  dozen  American  lawyers  and  judges  to  do  a 
comparative  study  of  the  American  and  English  criminal  justice 
systems.  Delegation  was  led  by  the  Chief  Justice  of  the 
United  States. 

10.   Other  Memberships:  List  all  organizations  to  which  you  belong 
that  are  active  in  lobbying  before  public  bodies. 

None. 


Please  list  all  other  organizations  to  which  you  belong. 

Northern  Virginia  Astronomy  Club. 

11.  Court  Admission:  List  all  courts  in  which  you  have  been 
admitted  to  practice,  with  dates  of  admission  and  lapses  if 
any  such  memberships  lapsed.  Please  explain  the  reason  for 
any  lapse  of  membership.  Give  the  same  information  for 
administrative  bodies  which  require  special  admission  to 
practice. 

District  of  Columbia  Court  of  Appeals,  November  25,  1975. 

United  States  Court  of  Appeals  for  the  District  of  Columbia 
Circuit,  February  24,  1976. 

United  States  Court  of  Appeals  for  the  Seventh  Circuit,  May 
14,  1976. 

United  States  Court  of  Appeals  for  the  Fourth  Circuit,  May  11, 
1978. 

United  States  Court  of  Appeals  for  the  Fifth  Circuit,  October 
17,  1979. 

United  States  Court  of  Appeals  for  the  Ninth  Circuit,  October 
26,  1979. 

United  States  Court  of  Appeals  for  the  Second  Circuit,  March 
12,  1980. 


179 


United  States  Court  of  Appeals  for  the  Tenth  Circuit,  April 
30,  1980. 

United  States  Court  of  Appeals  for  the  Eighth  Circuit,  July 
23,  1981. 

United  States  Court  of  Appeals  for  the  Eleventh  Circuit, 
October  1,  1981. 

United  States  Court  of  Appeals  for  the  First  Circuit,  February 
3,  1983. 

Supreme  Court  of  the  United  States,  December  4,  1978. 

12.  Published  Writings:  List  the  titles,  publishers,  and  dates  of 
books,  articles,  reports,  or  other  published  material  you  have 
written  or  edited.  Please  supply  one  copy  of  all  published 
material  not  readily  available  to  the  Committee.  Also,  please 
supply  a  copy  of  all  speeches  by  you  on  issues  involving 
constitutional  law  or  legal  policy.  If  there  were  press 
reports  about  the  speech,  and  they  are  readily  available  to 
you,  please  supply  them. 

I.  Books. 

1.  In  1986,  I  co-authored  a  two-volume  treatise  on  grand 
jury  law  with  Professor  Sara  Sun  Beale  of  the  Duke  University 
School  of  Law.  The  treatise  is  entitled  Grand  Jury  Law  and 
Practice.  Professor  Beale  and  I  prepare  annual  supplements  to  the 
treatise.  I  wrote  chapters  5,  7,  8,  9,  and  11  of  the  treatise.  In 
addition,  I  wrote  a  substantial  portion  of  chapter  6. 

2.  I  was  a  contributing  author  for  Master  Advocate's 
Handbook .  published  by  the  National  Institute  for  Trial  Advocacy  in 
1986.  I  wrote  chapter  16  of  that  book,  which  is  devoted  to  a 
discussion  of  appellate  practice.  My  co-author  on  that  chapter, 
Judge  William  Bauer  of  the  United  States  Court  of  Appeals  for  the 
Seventh  Circuit,  made  a  number  of  helpful  suggestions,  but  the 
chapter  otherwise  represents  my  work.  Master  Advocate's  Handbook 
may  not  be  readily  available  through  most  law  libraries,  so  I  have 
included  a  copy  of  chapter  16  of  that  book  with  this  questionnaire. 

II.  Articles. 

1.  A  Matter  of  Wooden  Logic:  Labor  Law  Preemption  and 
Individual  Rights,  51  Texas  L.  Rev.  1037  (1974). 

III.  Speeches. 

Once  or  twice  a  year,  I  have  spoken  to  various  groups  on 
subjects  such  as  appellate  advocacy,  Supreme  Court  practice,  and 


180 


recent  developments  in  the  law.  In  addition,  following  the  death 
of  Justice  Thurgood  Marshall,  I  delivered  two  tributes  to  his 
memory.  I  do  not  speak  from  a  text,  and  I  therefore  do  not  have 
copies  or  notes  relating  to  any  address  I  have  delivered.  I  am  not 
aware  of  any  press  reports  on  any  of  my  addresses. 

13.  Health;  What  is  the  present  state  of  your  health?  List  the 
date  of  your  last  physical  examination. 

Excellent.   Last  physical  examination:  April  29,  1994. 

14.  Judicial  Office;  State  (chronologically)  any  judicial  offices 
you  have  held,  whether  such  position  was  elected  or  appointed, 
and  a  description  of  the  jurisdiction  of  each  such  court. 

None. 


15.  Citations;  If  you  are  or  have  been  a  judge,  provide: 
(1)  citations  for  the  ten  most  significant  opinions  you  have 
written;  (2)  a  short  summary  of  and  citations  for  all  appel- 
late opinions  where  your  decisions  were  reversed  or  where  your 
judgment  was  affirmed  with  significant  criticism  of  your 
substantive  or  procedural  rulings;  and  (3)  citations  for 
significant  opinions  on  federal  or  state  constitutional 
issues,  together  with  the  citation  to  appellate  court  rulings 
on  such  opinions.  If  any  of  the  opinions  listed  were  not 
officially  reported,  please  provide  copies  of  the  opinions. 

N/A 

16.  Public  Office:  State  (chronologically)  any  public  offices  you 
have  held,  other  than  judicial  offices,  including  the  terms  of 
service  and  whether  such  positions  were  elected  or  appointed. 
State  (chronologically)  any  unsuccessful  candidacies  for 
elective  public  office. 

6/73  -  6/74         Law  Clerk  to  Judge  Henry  J.  Friendly, 

United  States  Court  of  Appeals  for  the 
Second  Circuit. 
Appointed. 

6/74  -  8/75         Law  Clerk  to  Justice  Thurgood  Marshall, 

Supreme  Court  of  the  United  States. 
Appointed. 

1/78  -  5/79         Assistant  to  the  Solicitor  General, 

Department  of  Justice. 


181 


5/79  -  3/82 


3/82  -  4/86 


4/86  -  3/94 


3/94  -  Present 


Chief,  Appellate  Section,  Criminal 
Division,  Department  of  Justice. 
Appointed. 

Special  Counsel  to  the  Organized  Crime 
and  Racketeering  Section,  Criminal 
Division,  Department  of  Justice. 
Appointed. 

Deputy  Solicitor  General, 
Department  of  Justice. 
Appointed. 

Acting  Associate  Attorney  General 

and  Deputy  Associate  Attorney  General, 

Department  of  Justice. 

Appointed. 


17.   Legal  Career; 

a.  Describe  chronologically  your  law  practice  and  experience 
after  graduation  from  law  school  including: 

1.  whether  you  served  as  clerk  to  a  judge,  and  if  so,  the 
name  of  the  judge,  the  court,  and  the  dates  of  the  period 
you  were  a  clerk; 

From  June  1973  until  June  1974,  I  served  as  law  clerk  to  Judge 
Henry  J.  Friendly  of  the  United  States  Court  of  Appeals  for  the 
Second  Circuit.  During  the  last  portion  of  the  year  of  ray 
clerkship,  Judge  Friendly  also  served  as  the  Presiding  Judge  of  the 
Special  Railroad  Reorganization  Court. 

From  June  1974  until  August  1975,  I  served  as  law  clerk  to 
Associate  Justice  Thurgood  Marshall  of  the  Supreme  Court  of  the 
United  States. 

2.  whether  you  practiced  alone,  and  if  so,  the 
addresses  and  the  dates. 


I  never  practiced  alone. 

3.  the  dates,  names  and  addresses  of  law  firms  or 
offices,  companies  or  governmental  agencies 
with  which  you  have  been  connected,  and  the 
nature  of  your  connection  with  each; 

After  my  clerkship  with  Justice  Marshall,  I  became  an 
associate  with  the  law  firm  of  Miller,  Cassidy,  Larroca  &  Lewin, 
2555  M  St.,  N.W.,  Washington,  D.C.,  20036.  I  was  employed  in  that 
capacity  from  September  1975  until  January  1978. 


182 


8 

I  left  Miller,  Cassidy,  Larroca  &  Lewin  in  January  1978  to 
join  the  Office  of  the  Solicitor  General,  Department  of  Justice, 
10th  and  Pennsylvania,  N.W.,  Washington,  D.C.  20530,  where  I  served 
as  an  Assistant  to  the  Solicitor  General  from  January  1978  until 
May  1979. 

In  May  1979,  I  was  appointed  Chief  of  the  Appellate  Section  of 
the  Criminal  Division  of  the  Department  of  Justice  and  left  the 
Solicitor  General's  Office.  I  served  in  that  position  until  March 
1982. 

In  March  1982,  I  was  appointed  Special  Counsel  to  the 
Organized  Crime  and  Racketeering  Section  of  the  Criminal  Division 
of  the  Department  of  Justice.  I  served  in  that  capacity  until 
March  1986. 

In  April  1986,  I  was  appointed  Deputy  Solicitor  General, 
Office  of  the  Solicitor  General,  Department  of  Justice.  I  was 
assigned  reviewing  responsibility  for  all  criminal  cases  handled  by 
the  Solicitor  General's  Office  and  some  civil  cases  as  well.  I 
served  as  Acting  Solicitor  General  during  the  period  between  the 
resignation  of  Charles  Fried  as  Solicitor  General  in  January  1989 
and  the  appointment  of  Kenneth  W.  Starr  as  Solicitor  General  in  May 
1989.  I  also  served  as  Acting  Solicitor  General  during  the  period 
between  the  resignation  of  Kenneth  W.  Starr  as  Solicitor  General  in 
January  1993  and  the  appointment  of  Drew  S.  Days,  III,  as  Solicitor 
General  in  May  1993.  I  have  also  served  as  Acting  Solicitor 
General  in  various  cases  in  which  the  Solicitor  General  has  been 
recused.  I  served  in  the  Solicitor  General's  office  until  March 
1994. 

In  March  1994,  I  was  appointed  Deputy  Associate  Attorney 
General  and  was  designated  Acting  Associate  Attorney  General 
following  the  resignation  of  Webster  Hubbell  as  Associate  Attorney 
General.   I  have  continued  in  that  position  until  the  present. 

b. 

1.  What  has  been  the  general  character  of  your  prac- 
tice, dividing  it  into  periods  with  dates,  if  its 
character  has  changed  over  the  years? 

1.  Since  March  1994,  I  have  served  as  Deputy  Associate 
Attorney  General  in  the  Department  of  Justice.  During  that  period, 
I  have  been  designated  as  Acting  Associate  Attorney  General.  I  was 
appointed  to  that  position  following  the  resignation  of  Webster 
Hubbell,  who  previously  served  as  Associate  Attorney  General.  My 
duties  as  Acting  Associate  Attorney  General  include  supervision  of 
the  following  litigating  divisions  of  the  Department  of  Justice: 
Antitrust  Division,  Civil  Division,  Civil  Rights  Division, 
Environment  and  Natural  Resources  Division,  and  Tax  Division.  The 
Associate  Attorney  General's  office  also  has  supervisory  responsi- 


183 


9 

bility  over  the  following  components  of  the  Department  of  Justice: 
the  Immigration  and  Naturalization  Service,  the  Executive  Office 
for  Immigration  Review,  the  Executive  Office  for  United  States 
Trustees,  the  Foreign  Claims  Settlement  Commission,  the  Office  of 
Information  and  Privacy,  and  the  Community  Relations  Service.  My 
duties  in  supervising  these  components  involve  both  administrative 
responsibilities  and  involvement  in  significant  substantive 
matters.  I  am  also  responsible  for  advising  the  Attorney  General 
and  the  Deputy  Attorney  General  about  issues  arising  from  the 
activities  of  these  components. 

2.  Between  April  1986  and  March  1994,  I  served  as  Deputy 
Solicitor  General.  During  that  time,  my  practice  was  principally 
before  the  Supreme  Court.  My  work  consisted  mainly  of  arguing 
cases  before  the  Supreme  Court,  drafting  and  reviewing  briefs  for 
filing  in  the  Supreme  Court,  and  supervising  the  work  of  other 
attorneys  in  the  Solicitor  General's  office.  My  main  area  of 
substantive  concentration  was  criminal  law;  I  was  responsible  for 
processing  most  of  the  criminal  cases  that  the  Solicitor  General's 
Office  handled.  In  addition,  I  was  responsible  for  several  cases 
in  the  areas  of  civil  rights  and  First  Amendment  law,  and  I  had 
supervisory  responsibility  for  a  variety  of  civil  cases  in  fields 
such  as  separation  of  powers,  Bivens  suits,  and  appeals  from  agency 
actions. 

In  addition  to  my  work  preparing,  reviewing,  and  supervising 
briefs  and  arguments  before  the  Supreme  Court,  I  was  responsible 
for  making  recommendations  to  the  Solicitor  General  regarding 
further  review  of  adverse  decisions  in  district  courts  and  courts 
of  appeals.  I  also  regularly  consulted  with  trial  attorneys  from 
United  States  Attorneys'  offices  and  from  the  Divisions  of  the 
Department  of  Justice  who  sought  advice  regarding  problems  arising 
in  district  court  litigation. 

For  several  months  in  1989  and  several  months  in  1993,  I 
served  as  Acting  Solicitor  General  pending  the  nomination  and 
confirmation  of  a  new  Solicitor.  General.  In  that  position,  I 
functioned  as  the  head  of  the  office  and  was  responsible  for  all 
the  filings  in  the  Supreme  Court  and  all  the  decisions  on  recommen- 
dations for  further  review  in  the  lower  courts.  The  supervisory 
responsibility  in  that  position  extended  to  both  civil  and  criminal 
cases,  and  included  matters  dealing  with  almost  every  aspect  of 
federal  constitutional,  statutory,  and  common  law. 

3.  Between  March  of  .1982  and  April  of  1986,  I  served  as 
Special  Counsel  to  the  Organized  Crime  and  Racketeering  Section  of 
the  Criminal  Division  of  the  Department  of  Justice.  My  responsi- 
bilities in  that  position  involved  litigation  in  district  and 
appellate  courts  in  cases  of  particular  importance  to  the  Depart- 
ment's organized  crime  program.  During  that  period  and  during  the 
prior  three  years  when  I  served  as  Chief  of  the  Appellate  Section 
of  the  Criminal  Division,  I  briefed  and  argued  approximately  100 


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cases  in  the  courts  of  appeals.  In  the  course  of  arguing  those 
cases,  I  appeared  in  each  of  the  regional  courts  of  appeals.  Most 
of  the  cases  I  handled  were  criminal  cases,  although  a  few  were 
civil.  I  also  appeared  in  district  courts,  usually  to  argue 
pretrial  or  post-trial  motions.  The  district  courts  in  which  I 
appeared  were  the  District  of  New  Jersey,  the  Eastern  District  of 
Pennsylvania,  the  District  of  Maryland,  the  Northern  District  of 
Ohio,  and  the  District  of  Nevada.  In  addition,  I  filed  motions  and 
other  pleadings  in  other  district  courts.  Finally,  one  of  my 
principal  functions  as  Special  Counsel  to  the  Organized  Crime  and 
Racketeering  Section  was  to  assist  trial  attorneys  in  the  field 
offices  of  the  Section  with  legal  problems  that  arose  in  the  course 
of  their  district  court  litigation. 

4.  From  May  of  1979  to  March  of  1982,  I  served  as  Chief  of 
the  Appellate  Section  of  the  Criminal  Division  of  the  Department  of 
Justice.  As  Chief  of  the  Appellate  Section,  I  was  responsible  for 
supervising  up  to  40  attorneys  who  briefed  and  argued  cases  in  each 
of  the  federal  courts  of  appeals  and  prepared  draft  briefs  in 
Supreme  Court  cases  for  the  Office  of  the  Solicitor  General.  The 
Appellate  Section  also  made  recommendations  under  my  supervision  to 
the  Solicitor  General  regarding  whether  appeals  should  be  taken 
from  decisions  in  district  courts  and  courts  of  appeals  that  were 
adverse  to  the  government.  I  personally  briefed  and  argued  a 
number  of  appeals  and  supervised  other  attorneys  in  handling 
appellate  matters.  In  addition,  I  occasionally  appeared  in 
district  courts  and  regularly  advised  attorneys  in  the  field  with 
respect  to  district  court  litigation. 

5.  During  my  first  tour  of  duty  in  the  Solicitor  General's 
Office,  I  served  as  an  Assistant  to  the  Solicitor  General  from 
January  1978  through  May  1979.  My  responsibilities  included 
preparing  briefs  and  presenting  arguments  to  the  Supreme  Court  in 
a  variety  of  cases,  and  making  recommendations  to  the  Solicitor 
General  regarding  whether  further  review  should  be  sought  in  cases 
in  which  the  government  had  suffered  losses  in  the  lower  courts. 
My  principal  area  of  concentration  during  that  period  was  employ- 
ment discrimination  law.  I  also  handled  general  civil  matters, 
administrative  law  cases,  natural  resources  cases,  and  criminal 
matters. 

6.  During  the  period  from  September  1975  through  January 
1978,  I  was  an  associate  with  the  firm  of  Miller,  Cassidy,  Larroca 
&  Lewin,  where  I  was  engaged  in  litigation  of  civil  and  criminal 
matters,  mostly  in  federal  district  courts.  I  participated  as 
second-chair  in  three  trials,  two  of  which  lasted  approximately  one 
week,  and  one  of  which  lasted  several  months.  Two  of  the  three 
trials  (including  the  several-month  trial)  were  jury  trials;  the 
third  was  tried  to  the  court. 

In  addition  to  preparing  for  and  participating  in  those 
trials,  I  was  involved  in  discovery  and  pretrial  litigation  in  a 


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number  of  cases,  which  required  me  to  file  pleadings  and  make  oral 
presentations  in  several  trial  courts,  both  in  the  federal  and 
state  systems.  Those  cases  involved  antitrust  law,  contract 
disputes,  federal  tax  claims,  natural  resources  issues,  and  state 
criminal  charges. 

7.  Prior  to  entering  private  practice,  I  was  privileged  to 
serve  a  one-year  term  as  a  law  clerk  to  each  of  two  outstanding 
federal  judges,  Judge  Henry  J.  Friendly  of  the  Second  Circuit  and 
Justice  Thurgood  Marshall  of  the  Supreme  Court.  Both  years  were 
intensive  learning  experiences  from  which  I  feel  that  I  gained  much 
more  than  I  contributed. 

2.   Describe  your  typical  clients,  and  mention  the 
areas,  if  any,  in  which  you  have  specialized. 

Since  I  joined  the  Department  of  Justice  in  1978,  my  sole 
client  has  been  the  United  States,  its  agencies,  and  its  officers. 
With  minor  exceptions,  the  Office  of  the  Solicitor  General  is  the 
exclusive  representative  of  the  federal  government  before  the 
Supreme  Court.  I  have  represented  a  variety  of  departments, 
agencies,  and  other  entities  within  the  federal  government.  In 
addition  to  appearing  on  behalf  of  the  United  States  generally,  I 
have  represented  the  Bureau  of  Prisons,  the  Immigration  and 
Naturalization  Service,  and  Cabinet  departments.  I  have  also 
worked  on  matters  for  several  independent  agencies,  including  the 
Securities  and  Exchange  Commission,  the  National  Labor  Relations 
Board,  and  the  Equal  Employment  Opportunity  Commission. 


c. 

1.  Did  you  appear  in  court  regularly,  occasionally  or  not  at 
all?  If  the  frequency  of  your  appearances  in  court  has 
varied  during  this  period,  describe  each  such  variance, 
giving  the  dates  thereof. 

I  have  appeared  in  court  regularly  during  my  legal  career, 
mostly  in  appellate  matters.  I  have  argued  before  the  United 
States  Supreme  Court  on  31  occasions  and  have  "second-chaired" 
arguments  before  the  Supreme  Court  on  more  than  100  occasions.  I 
have  argued  a  total  of  more  than  100  cases  in  various  federal 
courts  of  appeals.  In  addition,  I  have  appeared  on  occasion  in 
various  federal  district  courts  and  a  few  times  in  the  courts  of 
other  jurisdictions. 

During  the  past  eight  years  (1986-present) ,  I  have  argued  in 
court  an  average  of  about  four  times  each  year.  For  the  eight 
years  before  that  (1978-1986)  ,  my  court  appearances  were  more 
frequent:  during  that  period,  I  argued  approximately  15  times  each 
year,  mainly  in  federal  courts  of  appeals,  but  occasionally  in  the 


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Supreme  Court  and  in  district  courts.  During  the  period  that  I  was 
in  private  practice  (1975-1978),  I  participated  in  four  trials 
ranging  in  length  from  one  day  to  eight  weeks,  and  I  appeared  in 
court  on  perhaps  10  other  occasions.  During  the  period  that  I 
served  as  a  law  clerk  (1973-1975),  I  was  present  in  court  on  many 
occasions,  but  of  course  did  not  appear  in  court  as  counsel  for  a 
party . 

2.  What  percentage  of  these  appearances  was  in 

1)  Federal  courts. 

2)  State  courts  of  record. 

3)  Other  courts. 

Most  of  my  appearances  in  court  have  been  in  federal  courts. 
I  have  appeared  in  state  and  local  courts  on  only  three  occasions, 
all  while  I  was  in  private  practice.  I  would  therefore  estimate 
that  my  appearances  in  federal  court  constitute  approximately  99% 
of  my  appearances  in  court. 

3.  What  percentage  of  your  litigation  was 

1)  Civil. 

2)  Criminal. 

The  volume  of  my  civil  litigation  has  varied  over  time,  but 
altogether  I  estimate  that  my  practice  has  been  approximately  75 
percent  criminal  and  25  percent  civil. 

During  the  period  that  I  was  in  private  practice,  I  spent 
approximately  70  percent  of  my  time  on  civil  litigation  and  30 
percent  on  criminal  litigation.  During  the  period  that  I  was  first 
in  the  Office  of  the  Solicitor  General  (1978-1979),  I  spent 
approximately  70  percent  of  my  time  on  civil  cases  and  30  percent 
on  criminal  cases.  During  the  period  that  I  was  in  the  Criminal 
Division  at  the  Department  of  Justice  (1979-1986),  I  spent 
approximately  90  percent  of  my  time  on  criminal  cases  and  10 
percent  of  my  time  on  civil  cases. 

4.  State  the  number  of  cases  in  courts  of  record 
you  tried  to  verdict  or  judgment  (rather  than 
settled) ,  indicating  whether  you  were  sole 
counsel,  chief  counsel,  or  associate  counsel. 

I  have  tried  a  total  of  four  cases  to  verdict  or  judgment.  I 
was  associate  counsel  in  each  one.  I  have  participated  in  other 
cases  at  the  trial  level,  although  not  as  trial  counsel  throughout 
the  proceeding.  For  example,  I  participated  in  the  prosecution  of 
Manuel  Noriega  by  briefing  and  arguing  the  principal  pretrial 
motions  in  that  case  challenging  the  jurisdiction  of  the  district 
court  and  by  consulting  with  the  trial  counsel  prior  to  and  during 
the  trial.   In  addition,  throughout  my  tenure  in  the  Department  I 


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have  regularly  consulted  with  government  trial  counsel  during  trial 
proceedings  and  have  actively  participated  in  addressing  particular 
issues  that  have  arisen  during  trial. 

5.   What  percentage  of  these  trials  was 

1)  Jury. 

2)  Non-jury. 

Of  the  four  cases  that  I  tried  to  verdict  or  judgment,  two 
were  jury  trials  (50%)  and  two  were  non-jury  trials  (50%)  . 

18.  Describe  the  ten  most  significant  litigated  matters  which  you 
personally  handled.  Give  the  citations,  if  the  cases  were 
reported,  and  the  docket  number  and  date  if  unreported.  Give 
a  capsule  summary  of  the  substance  of  each  case.  Identify  the 
party  or  parties  whom  you  represented;  describe  in  detail  the 
nature  of  your  participation  in  the  litigation  and  the  final 
disposition  of  the  case.   Also  state  as  to  each  case 

(a)  the  dates  of  representation; 

(b)  the  name  of  the  court  and  the  name  of  the  judge 
before  whom  the  case  was  litigated;  and 

(c)  the  individual  name,  address  and  telephone  numbers  of 
co-counsel  and  of  principal  counsel  for  each  of  the  other 
parties. 

1.  On  February  28,  1994,  I  argued  for  the  government  in  the 
Supreme  Court  in  Custis  v.  United  States,  No.  92-5209  (decided  May 
23,  1994),  a  case  that  decided  an  important  constitutional  question 
regarding  the  law  of  criminal  sentencing.  I  also  participated  in 
the  preparation  of  the  government's  brief  in  that  case. 

The  Custis  case  raised  the  question  whether,  in  a  case  in 
which  the  defendant  is  subjected  to  an  enhanced  sentence  based  on 
prior  convictions,  the  defendant  must  be  allowed  to  mount  a 
collateral  attack  on  the  validity  of  the  convictions  that  are  used 
to  enhance  his  sentence.  Because  sentence  enhancements  based  on 
prior  convictions  are  extremely  common  in  both  state  and  federal 
law,  the  question  whether  prior  convictions  must  be  subject  to 
collateral  challenge  at  the  subsequent  sentencing  proceeding  is  one 
of  great  practical  importance. 

We  argued  in  the  Custis  case  that  a  prior  conviction,  like  any 
other  sentencing  factor,  may  be  considered  in  sentencing  unless  its 
use  would  be  arbitrary;  its  use  would  be  arbitrary,  we  argued,  only 
if  the  prior  conviction  were  rendered  infirm  by  some  grave 
structural  flaw,  such  as  the  deprivation  of  the  right  to  counsel, 


188 


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that  rendered  the  prior  conviction  void.  Except  in  settings  such 
as  that,  we  contended,  the  Constitution  does  not  require  that  prior 
convictions  be  subject  to  challenge  on  various  statutory  and 
constitutional  grounds  before  they  can  be  used  at  sentencing.  If 
such  a  rule  were  adopted  in  sentencing  proceedings,  we  argued,  it 
would  logically  have  to  apply  as  well  in  other  settings  where  prior 
convictions  are  used,  such  as  to  impeach  a  testifying  defendant. 

The  Supreme  Court  agreed  with  the  government's  argument  that 
the  Constitution  does  not  require  that  defendants  be  allowed  to 
mount  collateral  attacks  on  prior  convictions  that  are  used  for 
sentence  enhancement  purposes,  except  in  limited  circumstances. 
The  Court  held  that  unless  a  defendant  can  show  that  he  or  she  was 
denied  counsel  altogether,  the  defendant  may  not  raise  a  constitu- 
tional objection  to  the  prior  convictions  referred  to  at  sentenc- 
ing, if  those  prior  convictions  had  not  previously  been  held 
invalid. 

My  co-counsel  in  this  case  was  John  F.  Manning,  Esq.  , 
Assistant  to  the  Solicitor  General,  Department  of  Justice, 
Washington,  D.C  20530,  (202)  514-2161.  Principal  counsel  for  the 
petitioner  was  Assistant  Public  Defender  Mary  M.  French,  Esq., 
Equitable  Bank  Center,  Tower  II,  Suite  401,  100  S.  Charles  Street, 
Baltimore,  Md.  21201. 

2.  On  February  24,  1993,  as  Acting  Solicitor  General,  I 
argued  for  the  government  in  the  Supreme  Court  in  Zobrest  v. 
Catalina  Foothills  School  District.  113  S.  Ct.  2462  (1993),  a 
significant  case  in  the  Supreme  Court's  line  of  decisions  inter- 
preting the  Establishment  of  Religion  Clause  of  the  First  Amend- 
ment. 

Plaintiff  James  Zobrest  was  a  deaf  child  who  wished  to  attend 
a  Roman  Catholic  high  school  while  obtaining  public  funding  to  pay 
for  a  sign-language  interpreter  to  assist  him  in  his  schooling. 
The  Individuals  with  Disabilities  Education  Act  (IDEA)  requires 
public  school  districts  to  make  accommodations  for  students  with 
disabilities,  including  students  who  choose  to  attend  private 
schools.  The  question  in  this  case  was  whether  the  Establishment 
Clause  of  the  First  Amendment  barred  the  defendant  school  district 
from  providing  Zobrest  with  a  sign-language  interpreter.  The 
district  court  and  the  court  of  appeals  concluded  that  for  the 
school  district  to  spend  public  funds  to  provide  an  interpreter  for 
Zobrest  would  violate  the  Establishment  Clause  because  it  would 
have  the  effect  of  advancing  religion  and  because  it  would  result 
in  a  symbolic  union  of  government  and  religion.  The  Supreme  Court 
reversed  by  a  5-4  vote.  The  majority  held  that  the  use  of  public 
funds  to  aid  Zobrest  in  this  case  was  permissible,  because  it  was 
part  of  a  general  governmental  program  that  distributes  benefits 
neutrally  to  any  qualifying  disabled  child,  without  regard  to 
whether  he  attends  a  religious  or  non-sectarian  school.  Making  an 
interpreter  available  has  a  neutral  financial  impact  on  both  the 


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school  and  the  parents,  since  the  ava  ..ability  of  the  interpreter 
does  not  provide  financial  support  to  the  religious  school,  and 
since  the  interpreter  would  be  available  in  a  public  or  non- 
sectarian  private  school.  The  dissenting  justices  concluded  that 
providing  an  interpreter  in  a  religious  school  violated  the 
Establishment  Clause,  because  the  result  was  that  the  secular  and 
sectarian  were  "inextricably  intertwined,"  and  because  providing 
governmental  assistance  to  the  educational  function  of  the 
religious  school  necessarily  entailed  governmental  participation  in 
the  school's  inculcation  of  religion. 

This  case  is  significant  because  it  resolved  a  critical 
question  about  whether  the  federal  statute  mandating  educational 
assistance  for  disabled  students  can  apply  to  assistance  given  to 
students  who  attend  religious  schools.  It  is  also  significant 
because  it  indicates  that  a  program  of  educational  assistance  will 
not  violate  the  Establishment  Clause  as  long  as  (1)  the  assistance 
is  provided  directly  to  the  student  rather  than  to  the  school,  (2) 
the  program  in  question  is  a  general  welfare  program  that  is 
neutral  with  respect  to  religion,  and  (3)  the  public  funding 
provides  no  incentive  for  students  to  undertake  sectarian  educa- 
tion. The  Court  rejected  the  argument  that  the  presence  of  the 
sign-language  interpreter  on  the  premises  of  the  school  was  enough 
to  render  the  public  aid  impermissible  under  the  Establishment 
Clause. 

My  co-counsel  in  the  case  was  Assistant  to  the  Solicitor 
General  Ronald  J.  Mann,  Department  of  Justice,  Washington,  D.C. 
20530,  (202)  514-1030.  Counsel  for  petitioners  was  William  Bentley 
Ball  of  Ball,  Skelly,  Murren  &  Connell,  511  North  Second  Street, 
Harrisburg,  Pa.  17108,  (717)  232-8731.  Principal  counsel  for 
respondents  was  John  C.  Richardson  of  DeConcini  McDonald  Brammer 
Yetwin  &  Lacy,  P.C.,  2525  East  Broadway  Blvd,  Suite  200,  Tucson, 
Arizona  85716,  (602)  322-5000. 

3.  In  1993,  I  argued  before  the  Supreme  Court  a  complex 
double  jeopardy  case  entitled  United  States  v.  Dixon  and  Foster. 
113  S.  Ct.  2849  (1993).  I  also  participated  in  the  preparation  of 
the  government's  petition  for  certiorari  and  brief  on  the  merits  in 
that  case. 

Dixon  involved  two  consolidated  lower  court  cases.  In  the 
first,  Dixon  was  first  prosecuted  for  criminal  contempt  and  was 
then  prosecuted  for  a  substantive  criminal  offense.  The  contempt 
prosecution  was  brought  by  the  United  States  for  violation  of  a 
bail  order  directing  Dixon  not  to  commit  any  crimes  while  he  was  on 
conditional  release  for  another  offense.  The  substantive  prosecu- 
tion was  for  the  same  drug  offense  that  was  responsible  for 
triggering  the  contempt  prosecution. 

The  second  case  at  issue  in  Dixon  was  the  Foster  case,  which 
involved  a  contempt  proceeding  brought  by  Foster's  estranged  wife, 


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who  had  obtained  a  civil  protection  order  against  F«ter,  directing 
him  to  stay  away  from  her  and  not  to  assault  her.  The  contempt 
proceeding  was  based  on  Foster's  assaults  on  his  wife.  The 
government  subseguently  prosecuted  Foster  for  assault  and  attempted 
murder  based  on  the  same  conduct. 

The  Supreme  Court  first  held  that  the  Double  Jeopardy  Clause 
applies  in  the  same  fashion  to  nonsummary  contempt  proceedings  as 
it  does  to  cases  of  any  other  type.  The  Court  then  held  that  the 
test  the  Court  had  adopted  a  few  years  earlier  in  Grady  v.  Corbin. 
495  U.S.  508  (1990),  to  evaluate  double  jeopardy  claims  based  on 
successive  prosecutions,  was  unworkable  and  should  be  abandoned. 
The  Court  therefore  overruled  its  decision  in  Grady  and  held  that 
the  traditional  "elements"  test  governed  the  double  jeopardy  issues 
in  this  case  (i.e. .  that  each  provision  under  which  the  defendant 
was  prosecuted  required  proof  of  an  element  not  required  by  the 
other  charge)  .  By  virtue  of  its  overruling  of  Grady  and  its 
adoption  of  the  more  traditional  interpretation  of  the  Double 
Jeopardy  Clause,  the  Dixon  case  has  become  the  leading  case  on  the 
law  of  double  jeopardy  as  applied  in  the  context  of  successive 
prosecutions. 

My  co-counsel  was  Assistant  to  the  Solicitor  General  James  A. 
Feldman,  Department  of  Justice,  Washington,  D.C.  20530,  (202)  514- 
4277.  Principal  counsel  for  the  respondents  was  James  W.  Klein  of 
the  Public  Defender  Service,  451  Indiana  Ave.,  N.W.,  Washington, 
D.C.  20001,  (202)  628-1200. 

4.  As  Acting  Solicitor  General  in  1989,  I  worked  on  the 
briefs  and  argued  for  the  government  in  the  Supreme  Court  in  two 
consolidated  cases  raising  the  question  of  the  constitutionality  of 
statutes  providing  for  the  criminal  forfeiture  of  funds  that 
defendants  sought  to  use  to  pay  their  attorneys'  fees.  The  cases 
are  styled  United  States  v.  Monsanto.  491  U.S.  600  (1989),  and 
Caplin  &  Drvsdale  v.  United  States.  491  U.S.  617  (1989).  The  two 
cases  were  consolidated  for  argument  and  were  argued  back-to-back 
on  March  21,  1989. 

I  argued  before  the  Court  that  a  criminal  defendant  does  not 
have  a  constitutional  right  to  use  for  his  own  purposes  funds  that 
are  the  proceeds  of  a  crime,  even  if  he  wishes  to  use  those  funds 
to  pay  his  lawyer.  In  addition,  I  argued  that  the  criminal 
forfeiture  provisions  of  the  federal  racketeering  and  narcotics 
statutes  make  the  forfeiture  of  the  proceeds  of  racketeering  and 
narcotics  violations  mandatory,  and  do  not  give  courts  discretion 
to  decline  to  order  forfeiture  if  the  funds  are  to  be  used  for  a 
purpose  such  as  paying  attorneys'  fees. 

The  Supreme  Court  agreed  with  our  submission,  although  by  a 
narrow  margin,  ruling  in  favor  of  the  government  by  a  5-4  vote  in 
each  case.  Besides  upholding  the  constitutionality  of  the  federal 
forfeiture  statutes,  the  two  cases  resolved  important  questions 


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regarding  the  proper  construction  of  those  statutes,  and  they 
disposed  of  the  broad  Sixth  Amendment  challenge  to  the  forfeiture 
of  assets  in  the  hands  of  a  criminal  defendant  that  the  defendant 
wishes  to  use  to  pay  his  attorney.  I  argued  that  while  the  Sixth 
Amendment  does  not  bar  forfeiture  of  such  funds  altogether,  it  is 
open  to  defendants  and  their  attorneys  to  argue  that  the  procedures 
used  in  particular  cases  would  violate  statutory  or  constitutional 
requirements  by  depriving  a  defendant  of  funds  with  which  to  retain 
an  attorney  without  an  adequate  showing  that  the  funds  were  the 
proceeds  of  a  crime.  The  Court  agreed  and  left  for  future 
resolution  claims  that,  in  particular  cases,  prosecutors  have 
abused  their  powers  under  the  forfeiture  statutes. 

My  co-counsel  in  both  cases  was  Deputy  Solicitor  General  Edwin 
S.  Kneedler,  Department  of  Justice,  Washington,  D.C.  20530,  (202) 
514-3261.  Principal  counsel  for  the  opposing  parties  were  Edward 
M.  Chikofsky,  Adjunct  Professor,  Washington  College  of  Law, 
American  University,  4400  Massachusetts  Ave.,  N.W.,  Washington, 
D.C.  20016,  (202)  885-1517,  and  Peter  Van  N.  Lockwood  of  Caplin  & 
Drysdale,  Chartered,  One  Thomas  Circle,  N.W.,  Washington,  D.C. 
20005,  (202)  862-5000. 

5.  In  1991,  I  worked  on  the  brief  and  argued  in  the  Supreme 
Court  in  Evans  v.  United  States.  112  S.  Ct.  1881  (1992),  which 
raised  a  difficult  question  under  the  federal  extortion  statute,  18 
U.S.C.  1951.  The  issue  in  the  case  was  whether  extortion,  when 
committed  by  a  public  official,  requires  proof  that  the  official 
initiated  or  induced  the  making  of  a  payment  by  threatening  to  take 
adverse  official  action,  or  whether  it  is  enough  that  the  official 
accepted  money  to  which  he  knew  he  was  not  entitled.  Several 
courts  of  appeals  had  held  that  some  form  of  inducement  by  the 
public  official  was  necessary  to  establish  "extortion  under  color 
of  official  right"  under  the  statute.  Our  position  was  that  the 
statute  is  violated  if  the  public  official  accepted  a  payoff, 
knowing  that  he  was  not  entitled  to  the  money,  in  return  for  some 
official  act. 

In  the  course  of  drafting  the  brief  and  preparing  the  oral 
argument  in  this  case,  I  did  extensive  research  on  the  common  law 
origins  of  the  crime  of  extortion  and  well  as  research  in  the 
National  Archives  on  the  origins  of  the  federal  anti-racketeering 
legislation  in  the  early  1930' s  that  ultimately  led  to  the 
enactment  of  the  federal  extortion  statute.  The  historical 
materials  were  of  interest  to  the  Court  and  turned  out  to  be  the 
focus  of  much  of  the  Court's  active  questioning  during  the  oral 
argument.   The  case  was  argued  on  December  9,  1991. 

In  a  case  that  produced  four  separate  opinions,  a  bare 
majority  of  the  Justices  agreed  with  our  position  and  affirmed  the 
defendant's  conviction.  The  case  is  significant  because  it  permits 
federal  prosecution  of  corrupt  public  officials  even  when  those 
officials  have  not  actively  solicited  payments  or  threatened  to 


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harm  those  who  do  not  make  the  payments.  Because  payoffs  to  public 
officials  are  often  made  in  settings  in  which  demands  for  money  and 
threats  of  adverse  action  are  communicated  in  subtle  fashion  or  in 
guarded  terms,  the  decision  in  the  Evans  case  makes  possible 
federal  prosecution  in  a  large  number  of  public  corruption  cases 
that  would  otherwise  be  beyond  the  reach  of  federal  law. 

My  co-counsel  was  Christopher  J.  Wright,  then  Assistant  to  the 
Solicitor  General,  now  Deputy  General  Counsel,  Federal  Communica- 
tions Commission,  1919  M  Street,  N.W.,  Washington,  D.C.  20554, 
(202)  632-7020.  Counsel  for  the  opposing  party  was  Michael  Abbott, 
100  Peachtree  Street,  N.W.,  Atlanta,  Georgia  30303,  (404)  525-1960. 

6.  In  1990,  I  was  responsible  for  briefing  and  presenting 
oral  argument  before  the  Supreme  Court  in  United  States  v.  Oieda 
Rios.  495  U.S.  257  (1990)  .  That  case  involved  an  important 
prosecution  of  members  of  a  Puerto  Rican  nationalist  group  who  were 
charged  with  committing  a  multi-million  dollar  robbery  from  a  Wells 
Fargo  truck  in  Connecticut.  The  case  turned  on  the  construction  of 
a  technical,  but  important,  provision  of  the  federal  wiretap 
statute  —  the  so-called  "sealing"  provision  that  reguires 
prosecutors  who  are  conducting  a  court-authorized  wiretap  to  submit 
the  products  of  the  wiretap  to  the  authorizing  judge  for  sealing 
immediately  upon  the  expiration  of  the  period  of  the  wiretap  order 
or  extensions  of  that  order.  In  the  Oieda  Rios  case,  the  prosecu- 
tor submitted  the  wiretap  tapes  for  sealing  at  the  end  of  the 
investigation,  rather  than  at  the  expiration  of  the  authorization 
order  for  each  wiretap.  In  the  briefs  and  at  oral  argument,  I 
contended  (1)  that  the  suppression  remedy  in  the  federal  wiretap 
statute  applies  only  to  failures  to  seal  the  products  of  the 
wiretaps,  not  to  delays  in  sealing;  (2)  that  the  reguirement  of  the 
sealing  provision  that  a  "satisfactory  explanation"  be  given  for 
any  delay  in  sealing  is  met  if  the  explanation  is  accurate,  without 
regard  to  whether  the  reason  for  the  delay  constitutes  a  valid 
legal  excuse;  and  (3)  that  the  government's  explanation  in  this 
case  was  "satisfactory,"  since  the  prosecutor  had  reasonably 
misinterpreted  the  sealing  reguirement  when  he  failed  to  have  the 
tapes  sealed  promptly  after  the  termination  of  each  order.  The 
Supreme  Court  rejected  the  first  two  arguments,  but  it  held  that 
the  third  had  legal  merit,  and  that  the  government  was  entitled  on 
remand  to  show  that  the  explanation  for  the  delay  in  sealing  was  a 
good  one. 

Because  of  the  importance  of  this  prosecution,  and  because  the 
legal  problem  with  the  admission  of  the  wiretap  evidence  was 
evident  from  very  early  on  in  the  case,  I  became  involved  in 
planning  the  government's  strategy  several  years  before  the  Supreme 
Court  argument.  Because  Second  Circuit  law  on  the  wiretap  issue 
was  unfavorable,  we  anticipated  from  the  outset  that  we  might  well 
have  to  go  to  the  Supreme  Court  for  relief  in  this  case,  so  our 
efforts  focused  on  making  a  record  in  the  district  court  that  would 
put  us  in  the  best  position  before  the  Supreme  Court.   I  therefore 


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worked  with  the  prosecutors  on  the  wiretap  issue  when  the  case  was 
before  the  district  court  and  consulted  on  the  presentation  and 
briefing  of  the  issue  both  in  the  district  court  and  in  the  court 
of  appeals.  When  we  were  unsuccessful  in  the  lower  courts,  I 
worked  extensively  on  both  the  petition  for  a  writ  of  certiorari 
and  the  government's  brief  on  the  merits  in  the  case.  Although  the 
Supreme  Court  accepted  only  one  of  our  arguments  in  the  case,  the 
result  of  its  ruling  was  that  the  evidence  in  question  was 
ultimately  held  to  be  admissible,  and  the  case  was  resolved 
favorably  for  the  government  by  guilty  pleas  from  the  defendants. 

My  co-counsel  in  the  case  were  Assistant  to  the  Solicitor 
General  Harriet  S.  Shapiro,  Department  of  Justice,  Washington,  D.C. 
20530,  (202)  514-4281,  and  Patty  Merkamp  Stemler,  Chief,  Appellate 
Section,  Criminal  Division,  Department  of  Justice,  Washington,  D.C. 
20530,  (202)  514-2611.  Principal  counsel  for  the  respondents  was 
Richard  A.  Reeve,  Assistant  Federal  Public  Defender,  234  Church 
Street,  Room  1001,  New  Haven,  Conn.  06510,  (203)  773-2148.  The 
Assistant  United  States  Attorney  with  whom  I  worked  most  closely 
throughout  the  pendency  of  this  case  in  the  district  court,  the 
court  of  appeals,  and  the  Supreme  Court  was  John  A.  Danaher,  III, 
Office  of  the  United  States  Attorney,  450  Main  Street,  Hartford, 
Conn.  06103,  (203)  722-3270. 

7.  On  January  7,  1991,  I  argued  for  the  United  States  as 
amicus  curiae  in  a  civil  case  in  which  we  supported  a  prisoner  who 
was  suing  state  prison  officials  for  violating  the  Cruel  and 
Unusual  Punishments  Clause  of  the  Eighth  Amendment  because  of  the 
conditions  of  the  prisoner's  confinement.  The  case  is  Wilson  v. 
Seiter.  Ill  S.  Ct.  2321  (1991). 

The  lower  court  in  the  Wilson  case  had  held  that  a  prisoner 
could  not  establish  a  violation  of  the  Cruel  and  Unusual  Punish- 
ments Clause  with  respect  to  prison  conditions  unless  he  or  she 
could  show  that  the  prison  officials  were  guilty  of  malicious 
cruelty  in  establishing  or  tolerating  inhumane  conditions.  In  our 
brief  and  at  oral  argument,  we  took  the  position  that  in  a  prison 
conditions  suit,  a  prisoner  need  not  prove  any  culpable  state  of 
mind  on  the  part  of  the  prison  officials,  as  long  as  the  prisoner 
can  show  that  the  conditions  were  inhumane.  As  a  backup  argument, 
we  contended  that  a  prisoner  should  have  to  establish  nothing  more 
than  that  the  officials  were  deliberately  indifferent  to  the 
gravely  substandard  conditions  in  the  prison. 

Only  four  justices  accepted  our  principal  submission,  but  the 
majority  held  that  some  culpable  state  of  mind  on  the  part  of  the 
prison  officials  was  necessary  to  establish  a  violation  of  the 
Eighth  Amendment.  The  majority  did  not  agree  with  the  lower  court 
or  the  State,  however,  that  proof  of  malicious  cruelty  by  the 
prison  officials  was  required  in  order  to  establish  a  violation. 
The  Court's  decision,  while  not  going  as  far  as  we  urged,  nonethe- 
less established  a  minimum  level  of  acceptable  conduct  by  prison 


194 


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officials  below  which  prisoners  would  be  entitled  to  relief  in 
civil  suits  over  prison  conditions.  Most  importantly,  the  court 
rejected  the  position  that,  in  order  to  prevail  in  a  prison 
conditions  case,  the  prisoner  must  show  that  the  prison  officials 
acted  with  malicious  cruelty.  The  Wilson  case  has  been  widely 
relied  upon  since  it  was  decided,  and  is  now  regarded  as  one  of  the 
leading  cases  in  the  field  of  prison  condition  litigation. 

My  co-counsel  in  the  case  were  Deputy  Solicitor  General  David 
L.  Shapiro,  now  at  Harvard  Law  School,  Cambridge,  Mass.  02138, 
(617)  495-4618,  and  Assistant  to  the  Solicitor  General  Michael  R. 
Dreeben,  Department  of  Justice,  Washington,  D.C.  20530,  (202)  514- 
4285.  Principal  counsel  from  the  ACLU  National  Prison  Project  was 
Elizabeth  Alexander,  1875  Connecticut  Avenue,  N.W.,  Suite  410, 
Washington,  D.C.  20009,  (202)  234-4830.  Opposing  counsel  was  Rita 
S.  Eppler,  Chief,  Federal  Litigation  Section,  Assistant  Attorney 
General,  State  Office  Tower,  26th  Floor,  30  East  Broad  Street, 
Columbus,  Ohio  43266,  (614)  466-5414. 

8.  In  1989,  I  represented  the  Attorney  General  and  other 
federal  officials  who  were  sued  in  their  official  capacities  in  a 
civil  action  brought  by  a  class  of  federal  prisoners  and  certain 
book  and  magazine  publishers.  I  participated  in  that  case, 
Thornburah  v.  Abbott .  490  U.S.  401  (1989),  from  the  time  of  the 
adverse  court  of  appeals  decision  through  the  filing  of  a  petition 
for  a  writ  of  certiorari,  the  briefing  of  the  case,  and  the  oral 
argument . 

The  Abbott  plaintiffs  objected  to  the  Bureau  of  Prisons' 
regulations  regarding  the  receipt  by  federal  prisoners  of  publica- 
tions from  outside  the  prison.  The  Bureau  of  Prisons'  policy 
authorized  wardens  to  reject  an  incoming  publication  if  it  was 
found  "to  be  detrimental  to  the  security,  good  order,  or  discipline 
of  the  institution  or  if  it  might  facilitate  criminal  activity." 
The  plaintiffs  filed  suit  challenging  the  regulation  on  its  face 
and  as  applied  to  a  number  of  publications.  The  district  court 
upheld  the  policy,  but  the  court  of  appeals  reversed,  holding  that 
under  the  standard  set  forth  in  Procunier  v.  Martinez.  416  U.S.  396 
(1974)  ,  the  regulations  violated  the  First  Amendment. 

The  Supreme  Court  reversed  the  court  of  appeals,  holding  that 
the  regulations  were  valid  under  the  applicable  standard  of 
reasonableness.  To  the  extent  that  Martinez  could  be  read  to 
require  strict  scrutiny  of  regulations  restricting  the  content  of 
incoming  mail  from  nonprisoners,  the  Court  overruled  Martinez.  The 
Court  held  that  the  broad  discretion  given  to  prison  wardens  with 
regard  to  matters  of  security  justified  the  approach  taken  in  the 
regulations,  which  were  neutral  with  respect  to  content,  but  which 
gave  wardens  considerable  discretion  to  exclude  materials  that  they 
considered  threatening  to  prison  security  and  order. 


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The  Abbott  case  is  significant  because  it  established  that 
prison  officials  have  discretion  to  screen  First  Amendment 
protected  materials  coming  into  the  prison  for  potential  security 
risks  that  may  not  be  obvious  (i.e.  .  the  publications  that  may  be 
excluded  are  not  limited  to  materials  such  as  pamphlets  that  offer 
instructions  on  how  to  manufacture  weapons  from  items  that  may  be 
found  in  the  prison  environment)  .  The  case  has  provided  guidance 
to  the  Bureau  of  Prisons  and  state  prison  officials  in  formulating 
policies  regarding  the  rights  of  prisoners  not  only  with  respect  to 
protected  First  Amendment  materials,  but  also  with  regard  to  other 
prison  activities. 

My  co-counsel  in  the  Abbott  case  was  Assistant  to  the 
Solicitor  General  Michael  R.  Dreeben,  Department  of  Justice, 
Washington,  D.C.  20530,  (202)  514-4285.  Principal  counsel  for 
respondent  was  Steven  Ney,  401  N.  Williamsburg  Drive,  Silver 
Spring,  Md.  20901,  (301)  681-5547. 

9.  In  1983,  I  briefed  and  argued  United  States  v.  Williams. 
737  F.2d  594  (7th  Cir.  1984),  cert,  denied,  470  U.S.  1003  and  1354 
(1985),  an  appeal  from  the  convictions  of  Teamsters  Union  President 
Roy  L.  Williams  and  others  for  attempting  to  bribe  U.S.  Senator 
Howard  Cannon.  The  prosecution,  which  was  brought  by  the  Organized 
Crime  and  Racketeering  Section's  Chicago  Strike  Force,  was  one  of 
the  most  important  of  the  Section's  labor  racketeering  cases.  I 
spent  substantial  time  on  this  case  starting  prior  to  the  indict- 
ment, when  I  consulted  with  the  attorneys  working  on  the  investiga- 
tion. During  the  trial,  I  consulted  with  the  trial  attorneys  on  a 
number  of  occasions.  Following  the  successful  completion  of  the 
trial,  I  handled  the  briefing  and  argument  of  the  appeal  before  the 
United  States  Court  of  Appeals  for  the  Seventh  Circuit,  which 
affirmed  the  convictions  in  all  respects. 

The  primary  significance  of  the  Williams  case  was  that  it 
resulted  in  the  conviction  of  the  president  of  a  major  union  for 
engaging  in  corrupt  efforts  to  bribe  a  United  States  Senator. 
Besides  removing  a  corrupt  chief  executive  from  the  Teamsters  Union 
and  two  corrupt  trustees  from  the  Teamsters*  Central  States  Pension 
Fund,  the  prosecution  resulted  in  the  conviction  of  two  major 
organized  crime  figures  in  Chicago,  Allen  Dorfman  and  Joseph 
Lombardo,  for  facilitating  the  bribery  attempt  through  their 
influence  with  the  Pension  Fund  and  other  corrupt  individuals  in 
Las  Vegas  and  Chicago.  In  addition,  the  appeal  was  sharply 
contested  and  raised  several  novel  legal  issues  that  were  resolved 
in  the  government's  favor. 

The  principal  issue  on  appeal  was  the  admissibility  of 
conversations  intercepted  through  electronic  surveillance.  The 
defendants  claimed  that  the  government  failed  adeguately  to 
minimize  the  conversations  overheard  during  the  surveillance 
period,  that  in  seeking  extensions  of  the  initial  wiretap  orders 
the  government  failed  to  comply  with  its  statutory  obligations  to 


196 


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set  forth  the  results  of  the  interception  or  to  explain  the  failure 
to  obtain  results,  and  that  the  government  secured  the  extension 
orders  that  produced  most  of  the  evidence  in  the  case  through 
deliberate  or  reckless  misrepresentations  to  the  authorizing  court. 
The  appeal  also  raised  a  number  of  novel  evidentiary  questions, 
including  a  challenge  to  the  district  court's  handling  of  an 
anonymous  extrinsic  contact  with  several  members  of  the  jury  during 
the  trial.  Preparing  the  brief  and  preparing  for  oral  argument 
required  me  to  familiarize  myself  with  the  very  extensive  district 
court  record  in  the  case,  which  included  not  only  a  lengthy  trial, 
but  also  substantial  pretrial  and  post-trial  proceedings.  Although 
I  had  assistance  in  drafting  minor  portions  of  the  brief,  the  work 
in  preparing  the  brief  was  mostly  my  own.  The  panel  of  the  Seventh 
Circuit  Court  of  Appeals  consisted  of  Circuit  Judges  Eschbach, 
Posner,  and  Coffey. 

Assisting  me  in  the  preparation  of  the  brief  was  Alexander  S. 
White,  Organized  Crime  and  Racketeering  Section,  Criminal  Division, 
Department  of  Justice,  Washington,  D.C.  20530,  (202)  514-3505.  I 
argued  the  case  alone.  Principal  counsel  for  the  defendants  were 
Nathan  Lewin  of  Miller,  Cassidy,  Larroca  &  Lewin,  2555  M  Street, 
N.W.,  Washington,  D.C.  20037,  (202)  293-6400;  William  G.  Hundley, 
1333  New  Hampshire  Ave.,  N.W. ,  Washington,  D.C.  20036,  (202)  887- 
4325;  Robert  M.  Stephenson,  33  North  Dearborn  Street,  Chicago, 
Illinois  60602,  (312)  263-0345;  Judith  A.  Halprin,  29  East  Madison 
St.,  Chicago,  Illinois  60602,  (312)  726-5190;  Frank  Oliver,  777 
N.E.  79th  St.,  Suite  104,  Miami,  Florida  33138,  (305)  758-1893;  and 
William  R.  Theis,  105  West  Madison  Street,  Chicago,  Illinois  60602, 
(312)  861-2170. 

10.  From  1980  until  1982,  I  participated  in  the  district 
court  and  appellate  court  proceedings  in  United  States  v.  General 
Electric  Co. ,  Criminal  No.  80-320  (D.N.J. ),  a  major  fraud  prosecu- 
tion against  the  General  Electric  Company  and  several  related 
companies  and  individuals.  The  prosecution  arose  from  the  payment 
by  company  officials  of  a  $1. 25  million  bribe  to  a  Puerto  Rican 
official  to  ensure  that  General  Electric  would  obtain  a  contract 
for  building  a  power  plant  in  Puerto  Rico.  The  trial  resulted  in 
convictions,  but  the  convictions  were  reversed  on  appeal. 

My  participation  in  this  case  began  shortly  before  the 
indictment  was  returned.  Throughout  the  pretrial  period,  I  worked 
closely  with  the  trial  team  on  pretrial  issues.  I  was  principally 
responsible  for  preparing  the  consolidated  government  responses  to 
the  defendants'  pretrial  motions.  I  then  personally  argued  the 
principal  motions  in  , the  district  court.  Although  I  did  not 
participate  in  the  trial  itself,  I  consulted  regularly  with  the 
trial  team  and  was  familiar  with  the  proceedings  as  the  trial 
unfolded. 

On  appeal,  I  prepared  the  brief  for  the  United  States  with 
another  lawyer,  and  I  argued  the  case  myself.   The  argument  was  a 


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difficult  one,  and  the  many  issues  that  were  raise  on  appeal  made 
it  necessary  for  me  to  be  familiar  with  the  long  district  court 
record  in  the  case.  Although  the  convictions  of  the  principal 
defendants  were  reversed,  see  United  States  v.  Steele.  685  F.2d  793 
(3d  Cir.),  cert,  denied,  459  U.S.  908  (1982),  the  case  is  signifi- 
cant because  of  its  precedential  effect  on  the  issue  of  the 
construction  of  statutes  of  limitation  in  criminal  cases,  and 
because  of  the  court's  treatment  of  the  issue  of  withdrawal  from  a 
criminal  conspiracy.  The  case  is  also  significant  because  it 
involved  a  very  large  bribe  paid  by  high  officials  of  a  leading 
American  company  to  obtain  a  large  public  contract. 

The  district  court  judge  in  this  case  was  Hon.  Anne  E. 
Thompson  of  the  United  States  District  Court  for  the  District  of 
New  Jersey;  the  panel  of  the  Third  Circuit  Court  of  Appeals 
consisted  of  Circuit  Judges  Aldisert,  Weis,  and  Becker. 

My  principal  co-counsel  on  the  brief  was  Peter  D.  Isakoff , 
1615  L  Street,  N.W.,  Washington,  D.C.  20036,  (202)  682-7000.  The 
principal  trial  attorney  in  the  case,  with  whom  I  worked  directly 
at  the  trial  level,  was  Joseph  P.  Covington,  815  Connecticut  Ave., 
N.W.,  Washington,  D.C.  20006,  (202)  828-5389.  Opposing  counsel  on 
the  appeal  were  Henry  S.  Ruth  of  Saul,  Ewing,  Remick  &  Saul,  3800 
Centre  Square  West,  Philadelphia,  Pa.  19102,  (215)  972-7777; 
Lawrence  Iason,  565  Fifth  Ave.,  New  York,  N.Y.  10017,  (212)  856- 
9600;  William  J.  Rodgers  of  Collier,  Shannon  &  Scott,  3050  K 
Street,  N.W.,  Suite  400,  Washington,  D.C.  20007,  (202)  342-8400; 
Donald  Horowitz,  24  Bergen  Street,  Hackensack,  N.J.  07601,  (201) 
343-0100;  Benjamin  Lewis  of  Lapatin,  Lewis,  Green,  Kitzes  & 
Blatteis,  P.C.,  989  Avenue  of  the  Americas,  New  York,  N.Y.  10018, 
(212)  244-2929;  and  Matthew  P.  Boylan  of  Lowenstein,  Sandler, 
Brochin,  Kohl,  Fisher  &  Boylan,  65  Livingston  Avenue,  Roseland, 
N.J.  07068,  (201)  992-8700. 

19.  Legal  Activities;  Describe  the  most  significant  legal 
activities  you  have  pursued,  including  significant  litigation 
which  did  not  progress  to  trial  or  legal  matters  that  did  not 
involve  litigation.  Describe  the  nature  of  your  participation 
in  this  question,  please  omit  any  information  protected  by  the 
attorney-client  privilege  (unless  the  privilege  has  been 
waived. ) 

1.  One  of  the  most  difficult  matters  in  which  I  have  been 
involved  was  an  extended  investigation  that  resulted  in  the 
indictment  of  an  FBI  agent  for  misconduct  in  connection  with  his 
relationship  with  an  informant.  That  matter  required  me  to  appear 
in  district  court  in  the  Northern  District  of  Ohio  on  several 
occasions,  and  it  required  me  to  be  involved  in  the  steps  leading 
to  the  indictment  of  an  FBI  agent  in  the  United  States  District 
Court  for  the  District  of  Columbia.   The  district  court  judge 


198 


24 

before  whom  I  appeared  in  that  case  was  the  Honorable  Sam  H.  Bell, 
United  States  District  Judge,  Northern  District  of  Ohio. 

The  matter  arose  out  of  an  investigation  of  Teamsters 
President  Jackie  Presser  and  others  in  Cleveland  for  labor 
racketeering.  Early  in  the  investigation,  two  Teamsters  officials 
were  prosecuted  for  criminal  violations  in  connection  with  their 
union  activities.  One  of  them,  Allen  Friedman,  was  convicted  of 
embezzling  $165,000  from  the  union  by  accepting  a  union  salary  even 
though  he  was  a  "ghost"  employee  of  the  union.  I  wrote  the 
government's  brief  in  Friedman's  appeal,  and  his  conviction  was 
affirmed. 

Several  FBI  agents  involved  in  the  case  later  revealed  to  the 
prosecutors  that  they  had  been  using  Jackie  Presser  as  an  FBI 
informant  for  years,  and  they  claimed  that  they  had  authorized 
Presser  to  keep  Friedman  on  the  union  payroll.  The  implications  of 
that  revelation  as  to  Friedman's  case  led  us,  after  intensive 
internal  review,  to  conclude  that  we  could  not  permit  Friedman's 
conviction  to  stand  without  taking  steps  to  reveal  the  matter  to 
the  court  and  counsel  for  Friedman.  The  difficulty  was  that  the 
information  regarding  Presser 's  status  as  an  informant  was,  at  that 
time,  highly  sensitive.  We  ultimately  reached  the  judgment  that 
the  government  had  to  concede  that  Friedman's  conviction  was  flawed 
and  move  to  dismiss  the  indictment,  since  the  government  could  not 
permit  Friedman's  conviction  to  stand  under  the  circumstances  and 
it  could  not  retry  Friedman  without  revealing  the  confidential 
information.  Friedman's  lawyers  pressed  for  revelation  of  the 
confidential  information.  I  was  given  the  responsibility  of 
appearing  before  the  district  court  and  conducting  the  highly 
unusual  proceedings  on  our  motion  to  have  the  court  grant  relief  to 
Friedman  without  forcing  the  government  to  disclose  confidential 
matters  regarding  Presser 's  informant  status.  I  submitted  briefs 
and  presented  argument  to  the  court  in  an  adversary  hearing 
regarding  the  appropriateness  of  the  course  recommended  by  the 
government.  Ultimately,  the  judge  agreed  to  vacate  Friedman's 
conviction  and  grant  the  government's  motion  to  dismiss  the 
indictment  without  reguiring  the  government  to  disclose  the 
confidential  matters  that  were  the  basis  for  the  motion  to  dismiss. 

Further  investigation  revealed  that  an  FBI  agent  who  had 
reported  that  the  FBI  had  authorized  Friedman  to  remain  on  the 
payroll  was  not  telling  the  truth.  The  agent  was  subseguently 
investigated  by  the  Justice  Department's  Office  of  Professional 
Responsibility  and  was  indicted  in  connection  with  his  role  in  the 
Presser  matter.  I  was  actively  involved  in  reviewing  the  charges 
and  wrote  the  prosecution  memorandum  in  that  case.  After  certain 
of  the  evidence  in  the  case  was  suppressed  by  the  district  court, 
I  recommended  that  an  appeal  be  taken  to  the  United  States  Court  of 
Appeals  for  the  District  of  Columbia  Circuit.  The  appeal,  however, 
was  unsuccessful.  See  United  States  v.  Friedrick,  842  F.2d  382 
(D.C.  Cir.  1988)  . 


199 


25 

This  case  was  significant  because  it  resulted  in  a  criminal 
prosecution  of  an  FBI  agent  for  misconduct  in  his  official  duties, 
a  situation  that  is  quite  rare.  It  was  also  significant  because  it 
required  the  Department  of  Justice  to  attempt  to  accommodate,  in  a 
particularly  difficult  setting,  the  very  strong  competing  interests 
in  protecting  the  identity  of  confidential  informants,  and  in 
ensuring  that  criminal  defendants  are  not  denied  a  fair  trial. 

2.  A  second  major  non-litigation  project  on  which  I  have 
worked  was  the  coordination  of  the  Department  of  Justice's  response 
to  the  congressional  inquiries  into  the  so-called  "Abscam" 
investigation  and  prosecutions  that  were  brought  against  various 
Members  of  Congress  and  others  in  the  early  1980s.  That  project, 
which  took  several  months  of  intensive  work  in  1982,  required  me  to 
review  the  voluminous  documentary  material  generated  in  each  of 
Abscam  prosecutions,  to  produce  as  much  of  that  material  as  could 
be  produced  without  compromising  Department  of  Justice  concerns 
over  the  production  of  deliberative  materials,  and  to  find  ways  to 
accommodate  the  investigating  committees'  interest  in  the  contents 
of  the  remaining  materials.  I  spent  substantial  time  dealing  with 
the  committee  staff  of  both  the  House  and  Senate  committees,  with 
the  Senate  Legal  Counsel,  and  with  Department  of  Justice  lawyers  in 
any  effort  to  work  out  arrangements  under  which  the  committees' 
investigation  could  proceed  unimpeded,  without  unduly  compromising 
the  Department's  interests.  I  believe  that  in  the  end,  I  was  able 
to  achieve  a  satisfactory  resolution  for  both  the  committees  and 
the  Department  regarding  the  production  of  materials  and  informa- 
tion about  the  investigations. 

3.  Beginning  in  January  1990,  I  was  assigned  to  assist  in 
the  prosecution  of  former  Panamanian  President  Manuel  Noriega  in 
the  United  States  District  Court  for  the  Southern  District  of 
Florida.  My  principal  responsibility  in  that  case  was  to  prepare 
responses  to  the  pretrial  motions  filed  by  the  defendants,  which 
challenged  the  jurisdiction  of  the  United  States  District  Court  to 
try  General  Noriega.  I  prepared  pleadings  on  a  variety  of  issues 
that  arose  prior  to  trial,  and  I  appeared  on  two  occasions  before 
the  district  court  to  argue  the  pretrial  motions.  Although  I  was 
not  present  for  the  trial  itself,  I  consulted  with  the  trial  team 
on  legal  issues  that  arose  during  the  course  of  the  prosecution, 
and  I  handled  the  one  pretrial  appeal  that  was  taken  in  that  case. 

4.  Probably  the  most  challenging  long-term  legal  project  on 
which  I  worked  during  the  past  12  years  was  the  writing  of  a  two- 
volume  treatise  on  grand  jury  law,  which  was  published  by  Callaghan 
&  Co.  in  1986.  Together  with  my  co-author,  Duke  University  Law 
School  Professor  Sara  Sun  Beale,  I  spent  about  four  years  of  my 
spare  time  writing  the  book,  which  covers  grand  jury  practice  in 
state  and  federal  courts.  I  began  the  process  in  order  to  learn 
more  about  grand  jury  law  and  because  I  wanted  to  try  to  make  a 
contribution  to  the  law  by  producing  an  organized  treatment  of  this 
difficult  subject,  which  at  the  time  had  not  been  covered  compre- 


200 


26 


hensively  m  any  other  treatise.  In  light  of  my  employment  by  the 
Department  of  Justice,  I  did  the  work  on  this  project  in  my  spare 
time,  and  I  did  not  accept  royalties  from  the  book  sales. 


201 


27 
II.   FINANCIAL  DATA  AND  CONFLICT  OF  INTEREST  (PUBLIC) 


List  sources,  amounts  and  dates  of  all  anticipated  receipts 
from  deferred  income  arrangements,  stock,  options,  uncompleted 
contracts  and  other  future  benefits  which  you  expect  to  derive 
from  previous  business  relationships,  professional  services, 
firm  memberships,  former  employers,  clients,  or  customers. 
Please  describe  the  arrangements  you  have  made  to  be  compen- 
sated in  the  future  for  any  financial  or  business  interest. 

None.  The  only  future  benefits  I  expect  to  receive  based  on 
my  Department  of  Justice  employment  are  the  benefits  associ- 
ated with  my  government  pension  plan  and  compensation  for 
unused  annual  leave  at  the  time  I  leave  the  Department. 

Explain  how  you  will  resolve  any  potential  conflict  of 
interest,  including  the  procedure  you  will  follow  in  determin- 
ing these  areas  of  concern.  Identify  the  categories  of 
litigation  and  financial  arrangements  that  are  likely  to 
present  potential  conf licts-of-interest  during  your  initial 
service  in  the  position  to  which  you  have  been  nominated. 

I  do  not  anticipate  conflict  of  interest  issues  to  arise 
frequently,  but  there  are  three  areas  to  which  I  would  have  to 
be  alert:  (1)  cases  involving  entities  in  which  I  have  an 
interest  (this  would  arise  only  in  the  case  of  companies  in 
which  my  wife  and  I  have  some  investment  interest)  ;  (2)  cases 
in  which  my  wife's  law  firm  is  involved;  and  (3)  cases  in 
which  I  had  some  prior  participation  at  the  Department  of 
Justice. . 

With  respect  to  cases  involving  entities  in  which  I  have  a 
financial  interest,  I  would  keep  a  current  list  of  companies 
in  which  my  wife  and  I  have  investments  and  I  would  share  that 
list  with  the  court  clerk's  office  and  my  staff  in  order  to 
ensure  that  I  would  not  participate  in  any  way  in  cases 
involving  those  companies.  If  my  ownership  of  securities  in 
a  particular  company  appeared  likely  to  create  ongoing 
conflict  of  interest  issues,  I  would  arrange  to  divest  myself 
of  that  property,  something  that  would  not  be  difficult  to  do, 
since  my  investments  in  particular  companies  are  relatively 
small  and  readily  transferable. 

With  respect  to  cases  in  which  my  wife's  law  firm  is  involved, 
I  would  recuse  myself,  although  I  would  not  expect  that  to 
happen  with  any  frequency,  since  my  wife's  firm  does  not 
practice  before  the  Federal  Circuit. 

With  respect  to  any  cases  in  which  I  have  had  some  participa- 
tion while  at  the  Department  of  Justice,  I  would  recuse 


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myself.  I  would  be  able  to  recognize  those  cases  in  which  I 
have  had  prior  involvement,  and  I  would  be  able  to  consult 
with  persons  in  the  Department  to  determine  the  degree  of  my 
participation  in  cases  in  which  that  issue  was  not  clear.  I 
would  not  expect  that  issue  to  arise  with  any  frequency,  since 
I  have  worked  on  only  a  handful  of  cases  in  the  Federal 
Circuit  during  my  tenure  at  the  Department. 

In  all  matters  involving  potential  conflicts  of  interest,  as 
well  as  other  matters  raising  questions  of  judicial  ethics,  I 
would  be  guided  by  the  Code  of  Judicial  Conduct. 

Do  you  have  any  plans,  commitments,  or  agreements  to  pursue 
outside  employment,  with  or  without  compensation,  during  your 
service  with  the  court?   If  so,  explain. 

No. 


4.  List  sources  and  amounts  of  all  income  received  during  the 
calendar  year  preceding  your  nomination  and  for  the  current 
calendar  year,  including  all  salaries,  fees,  dividends, 
interest,  gifts,  rents,  royalties,  patents,  honoraria,  and 
other  items  exceeding  $500  or  more  (If  you  prefer  to  do  so, 
copies  of  the  financial  disclosure  report,  required  by  the 
Ethics  in  Government  Act  of  1978,  may  be  substituted  here.) 

See  financial  disclosure  report  required  by  the  Ethics  in 
Government  Act  of  1978,  attached. 

5.  Please  complete  the  attached  financial  net  worth  statement  in 
detail  (add  schedules  as  called  for) . 

See  financial  statement  and  related  schedules,  attached. 

6.  Have  you  ever  held  a  position  or  played  a  role  in  a  political 
campaign?  If  so,  please  identify  the  particulars  of  the 
campaign,  including  the  candidate,  dates  of  the  campaign,  your 
title  and  responsibilities. 

No. 


203 

29 
III.    GENERAL  (PUBLIC) 

1.  An  ethical  consideration  under  Canon  2  of  the  American  Bar 
Association's  Code  of  Professional  Responsibility  calls  for 
"every  lawyer,  regardless  of  professional  prominence  or 
professional  workload,  to  find  some  tine  to  participate  in 
serving  the  disadvantaged."  Describe  what  you  have  done  to 
fulfill  these  responsibilities,  listing  specific  instances  and 
the  amount  of  time  devoted  to  each. 

While  I  was  in  private  practice,  I  spent  a  considerable 
portion  of  my  time  on  pro  bono  work.  The  largest  single  pro  bono 
project  on  which  I  worked  was  the  unpaid  representation  of  a 
defendant  in  a  federal  criminal  case  in  the  District  of  Maryland. 
The  defendant  in  that  case  would  not  have  been  able  to  afford 
representation  on  a  fee  basis,  although  he  was  able  to  help  defray 
some  of  the  out-of-pocket  expenses  associated  with  the  case. 

I  handled  the  case  when  it  first  came  into  the  office  and 
through  the  bail  and  arraignment  stages.  When  the  case  appeared 
likely  to  go  to  trial,  I  served  as  associate  counsel  in  the 
pretrial  proceedings  and  at  trial.  I  handled  all  of  the  pretrial 
motions,  much  of  the  research  and  witness  preparation,  and  some  of 
the  trial  proceedings.  I  spent  a  total  of  approximately  400  hours 
on  that  case. 

Since  leaving  private  practice  and  joining  the  government,  I 
have  not  engaged  in  representation  of  private  parties  in  any 
respect,  whether  pro  bono  or  otherwise.  In  my  work  in  the 
Department  of  Justice,  however,  I  have  attempted  to  serve  the 
interests  of  the  disadvantaged  in  other  ways. 

When  I  became  an  Assistant  to  the  Solicitor  General,  I 
requested  that  I  be  assigned  to  handle  employment  discrimination 
cases,  and  I  was  given  that  assignment.  During  the  period  that  I 
served  as  an  Assistant  to  the  Solicitor  General,  I  participated  in 
a  number  of  employment  discrimination  cases,  spending  approximately 
30  percent  of  my  time  on  that  subject  matter  and  working  closely 
with  the  Civil  Rights  Division  and  the  Equal  Employment  Opportunity 
Commission.  I  believe  that  the  work  I  did  in  that  capacity 
advanced  the  interests  of  persons  subjected  to  employment  discrimi- 
nation, which  was  at  that  time  and  continues  to  be  a  significant 
barrier  to  economic  and  social  advancement  for  disadvantaged 
persons. 

In  1991,  I  argued  the  case  of  Wilson  v.  Seiter  in  the  Supreme 
Court.  In  that  case,  I  argued  for  a  legal  standard  for  prison 
conditions  cases  that  was  significantly  more  favorable  to  the 
prisoners  than  the  standard  adopted  by  the  lower  court  and 
supported  by  the  respondent  State  of  Ohio.  Although  it  was  unusual 
for  the  Department  to  be  on  the  same  side  of  a  prison  case  with  the 


204 


30 

National  Prison  Project  of  the  ACLU,  our  position  in  the  Wilson 
case  was  compatible  with  the  position  taken  by  our  co-counsel  from 
the  National  Prison  Project.  I  believe  our  position  was  appropri- 
ately protective  of  prisoners,  who  often  do  not  have  the  ability  to 
protect  themselves  on  those  occasions  when  they  are  subjected  to 
gravely  inadequate  conditions  and  care.  I  spent  approximately  150 
hours  on  that  project. 

As  Acting  Solicitor  General,  I  authorized  the  government  to 
participate  as  amicus  curiae  in  two  employment  discrimination  cases 
in  the  Supreme  Court.  In  each  of  those  cases  I  authorized  the 
government  to  take  positions  that  I  believe  promoted  the  interests 
of  disadvantaged  persons.  The  first  of  those  cases  was  Harris  v. 
Forklift  Systems.  Inc..  114  S.  Ct.  367  (1993),  a  sexual  harassment 
case.  The  second  was  Landqraf  v.  USI  Film  Products.  No.  92-757, 
and  Rivers  v.  Roadway  Express.  Inc..  No.  92-938.  In  the  Harris 
case,  in  which  I  was  directly  involved  in  briefing  the  case,  we 
took  the  position,  ultimately  adopted  by  the  Supreme  Court,  that 
sexual  harassment  claims  could  be  established  without  the  need  for 
proof  of  some  kind  of  psychological  injury  to  the  plaintiff.  In 
the  Landqraf  and  Rivers  cases,  we  took  the  position  that  the  1991 
Civil  Rights  Act  should  be  given  retroactive  effect,  making  the 
procedural  and  remedial  provisions  of  that  statute  available  to 
plaintiffs  in  employment  discrimination  suits  that  pre-dated  the 
enactment  of  that  statute.  The  Supreme  Court  ultimately  rejected 
our  argument  in  the  Landqraf  and  Rivers  cases.  I  spent  a  total  of 
approximately  100  hours  on  those  cases. 

2.  The  American  Bar  Association's  Commentary  to  its  Code  of 
Judicial  Conduct  states  that  it  is  inappropriate  for  a  judge 
to  hold  membership  in  any  organization  that  invidiously 
discriminates  on  the  basis  of  race,  sex,  or  religion.  Do  you 
currently  belong,  or  have  you  belonged,  to  any  organization 
which  discriminates  —  through  either  formal  membership 
requirements  or  the  practical  implementation  of  membership 
policies? 

No. 


If  so,  list,  with  dates  of  membership.   What  you  have  done  to 
try  to  change  these  policies? 

N/A. 


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31 


3.    Is  there  a  selection  commission  in  your  jurisdiction  to 
recommend  candidates  for  nomination  to  the  federal  courts? 

There  is  not  a  selection  commission  for  the  Federal  Circuit. 


If  so,  did  it  recommend  your  nomination? 
N/A. 

Please  describe  your  experience  in  the  entire  judicial 
selection  process,  from  beginning  to  end  (including  the  circum- 
stances which  led  to  your  nomination  and  interviews  in  which  you 
participated) . 

I  have  been  interested  for  several  years  in  the  prospect  of 
judicial  service  on  a  federal  court.  In  early  1994,  I  learned  that 
a  position  on  the  Federal  Circuit  was  open,  so  I  sent  papers  to  the 
White  House  Counsel's  office  indicating  my  interest  and  setting 
forth  my  legal  and  personal  background.  In  late  April,  I  was 
advised  that  I  was  under  consideration  for  the  position.  I  have 
spoken  informally  with  several  persons  in  the  White  House  Counsel's 
office  and  the  Department  of  Justice  about  my  interest  in  the 
position,  and  I  was  interviewed  at  the  White  House  on  May  27,  1994. 
I  was  interviewed  by  a  representative  of  the  ABA  on  June  9,  1994, 
as  part  of  the  ABA's  judicial  screening  process.  I  was  investigat- 
ed by  the  FBI  during  May  1994.  The  White  House  provided  me  with 
forms  relating  to  the  position  and  I  completed  and  returned  them. 

4.  Has  anyone  involved  in  the  process  of  selecting  you  as  a 
judicial  nominee  discussed  with  you  any  specific  case,  legal 
issue  or  guestion  in  a  manner  that  could  reasonably  be 
interpreted  as  asking  how  you  would  rule  on  such  case,  issue, 
or  guestion?   If  so,  please  explain  fully. 

No. 


5.    Please  discuss  your  views  on  the  following  criticism  involving 
"judicial  activism." 

The  role  of  the  Federal  judiciary  within  the  Federal  govern- 
ment, and  within  society  generally,  has  become  the  subject  of 
increasing  controversy  in  recent  years.  It  has  become  the 
target  of  both  popular  and  academic  criticism  that  alleges 
that  the  judicial  branch  has  usurped  many  of  the  prerogatives 
of  other  branches  and  levels  of  government. 

Some  of  the  characteristics  of  this  "judicial  activism"  have 
been  said  to  include: 


206 


32 


a.  A  tendency  by  the  judiciary  toward  problem-solution 
rather  than  grievance-resolution; 

b.  A  tendency  by  the  judiciary  to  employ  the  individual 
plaintiff  as  a  vehicle  for  the  imposition  of  far-reaching 
orders  extending  to  broad  classes  of  individuals; 

c.  A  tendency  by  the  judiciary  to  impose  broad,  affirmative 
duties  upon  governments  and  society; 

d.  A  tendency  by  the  judiciary  toward  loosening  jurisdic- 
tional requirements  such  as  standing  and  ripeness;  and 

e.  A  tendency  by  the  judiciary  to  impose  itself  upon  other 
institutions  in  the  manner  of  an  administrator  with 
continuing  oversight  responsibilities. 

It  is  certainly  true  that  federal  courts  have  assumed  a  more 
prominent  role  in  the  functioning  of  state  and  federal  government 
during  the  past  50  years.  I  believe  it  overstates  the  matter, 
however,  to  say  that  the  courts  have  "usurped"  the  prerogatives  of 
the  states  or  the  other  branches  of  the  federal  government. 

In  certain  areas,  of  course,  the  federal  courts  have  assumed 
a  major  role  where  they  previously  had  no  role  or  only  a  minor  one. 
Habeas  corpus  review  of  state  criminal  convictions,  for  example, 
has  been  an  area  of  great  expansion  in  the  role  of  the  federal 
judiciary.  Federal  courts  likewise  have  been  very  active  in 
creating  new  law  in  the  area  of  constitutional  torts  and  in 
litigation  involving  school  desegregation,  prison  administration, 
and  the  death  penalty. 

Those  areas,  however,  are  exceptional.  For  the  most  part, 
federal  court  judgments  affect  only  the  particular  parties  before 
them,  and  only  with  respect  to  claims  that  Congress  has  clearly 
committed  to  the  federal  courts  to  resolve.  Only  occasionally  are 
federal  courts  presented  with  the  kinds  of  requests  for  broad 
relief  that  call  on  the  courts  to  enter  judgments  that  affect  large 
numbers  of  people  and  significantly  influence  broad  social  policy. 
Even  when  presented  with  such  claims,  most  federal  courts  are 
cautious  about  granting  expansive  relief. 

To  be  sure,  particular  decisions  of  federal  courts  imposing 
broad  relief  against  governmental  entities  have  been  highly  visible 
and  controversial.  In  spite  of  the  publicity  and  controversy 
attending  them,  however,  I  believe  that  many  of  those  decisions  are 
correct.  I  have  no  doubt,  for  example,  that  it  was  proper  for  the 
Supreme  Court  to  decree  that  school  desegregation  must  be  ended, 
even  though  that  step  meant  that  the  federal  courts  would  be 
embroiled  in  controversial  social  policy  issues  for  many  years.  I 
likewise  have  no  doubt  that  the  federal  courts  have  properly 


207 


33 


granted  relief  against  some  state  prisons  that  have  engaged  in 
systematic  denial  of  basic  levels  of  humane  treatment  to  prisoners. 
Those  measures  are  required,  I  believe,  by  the  obligation  of  the 
judiciary  to  enforce  valid  constitutional  and  statutory  claims  of 
persons  who  seek  relief  from  the  courts.  Indeed,  Congress  has 
acquiesced  in  court  involvement  in  such  matters  in  a  number  of  ways 
and  has  even  mandated  that  the  courts  play  a  central  role  in 
restructuring  governmental  institutions,  through  legislation  such 
as  the  Civil  Rights  of  Institutionalized  Persons  Act  and  the  Voting 
Rights  Act. 

It  may  be  that  particular  judgments  in  these  and  other  areas 
have  been  wrong  or  have  gone  too  far;  it  would  be  surprising  if  the 
courts  did  not  make  occasional  errors  in  cases  involving  broad 
social  policy  issues,  as  they  do  in  any  other  area.  But  the  fact 
that  errors  are  made  does  not  justify  condemning  the  role  of  the 
federal  courts  in  enforcing  constitutional  and  statutory  rights 
through  decrees  that  affect  large  numbers  of  people. 


208 

34 
FINANCIAL  STATEMENT 

Assets: 

Funds  on  Deposit  in  Banks  and  Credit  Unions      $   51,684.94 

Dept  of  Justice  Credit  Union:      $25,747.96 
Citicorp  Bank  $23,220.10 

First  American  Bank  $  2,716.88 

House  (most  recent  appraisal,  1986)  $  565,000.00 

Personal  property  (estimated  value)  $  25,000.00 

Personal  Thrift  Savings  Plan  $   97,958.35 

Account  at  Merrill  Lynch  Pierce  Fenner  &  Smith   $  225,936.00 
(see  Schedule  A  for  detailed  breakdown) 

IRA  (self  and  spouse)  —  ABA-Equitable  Co.       $   75,023.19 

Bredhoff  &  Kaiser  Profit  Sharing  Plan  (spouse)    $  406,561.00 
(see  Schedule  B  for  detailed  breakdown) 

401(k)  plan  (spouse)  $   56,053.50 

» 

Total  Assets:  $  1,503,216.98 

Liabilities:  None. 

Net  Worth:  $  1,503,216.98 


209 


35 
SCHEDULE  A   (Securities  held  in  Merrill  Lynch  account) 

Mutual  Funds  Estimated  Current  Value 

Nicholas  Applegate  Core  Growth  $30,568 

Port  Class  A 

Alliance  Growth  Fund  Class  A  $47,663 

Keystone  Fund  of  the  Americas  Class  B  $21,993 

ML  Eurofund  Class  A  $23,636 

Merrill  Lynch  Global  Allocation  Fund  Class  A  $12,385 

Merrill  Lynch  Developing  Capital  Markets  Fund  $10,167 

Municipal  Bonds 

Michigan  Mun  Bd  Auth  Rev  Local  Gov't  Ln  7%CI  D  MBIA 

Aug  91,  00.000%  May  15,  2006  $14,804 

Maricopa  County  Arizona  School  District  28 
Kyrene  Elem  FGIC  Rfdg  5.5%  Ser  C 
Nov  93  00.000%,  July  01,  2007  $22,735 

Metro  Pier-Exp  at  II  Ded 

St  Tax  Rev  A  6.55%C  FGIC 

Jan  93   00.000%  June  15,  2008  $12,545 

Socorro,  Texas,  Independent  School  Dist. 
5.45%  CI  RFDG  PSF   GTD 
Feb  94   00.000%  Sep  01,  2009  $  9,615 

Baltimore  Maryland  Prin  M-Raes 

7.5%  10/15/10  -  25   6.75%CI 

May  91   00.000%  Oct  15,  2010  $19,562 

Money  Funds 

CMA  Money  Account  $    2  63 


210 


36 


SCHEDULE  B  (Securities  held  in  spouse's  Bredhoff  &  Kaiser  profit- 
sharing  plan) 


Securities  Estimated  Current  Value 

Resolution  Funding  Corp.  Coupon  Strips                $  8,496 
Zero  %,  July  15,  2000 

Resolution  Funding  Corp.  Coupon  Strips                $  8,870 
Zero  %,  April  15,  2005 

Government  Trust  Certif.  $  8,906 
Israel  Class  3-C,  Zero  %  May  15,  2010 

American  International  Group,  Inc.  $11,671 

Archer  Daniels  Midland  $  8,757 

British  Petroleum  PLC  ADR  New  $17,758 

Entergy  Corp  New  $11,516 

General  Motors  Corp.  Class  E  $12,381 

General  Public  Utilities  $11,356 

Health  Care  Property  Invs.  $15,677 

International  Business  Machines  Corp.                 $  7,875 

Nationwide  Health  Pptys  $13,294 

Property  Tr  America  SBI  $14,997 

Raychem  Crp  Del  Com  $  5,531 

Rowan  Companies,  Inc.  $15,750 

Simon  Ppty  Group,  Inc.  $13,687 

Standard  Fed.  Bk  Troy,  Michigan  $  9,406 

Toys  R  Us  $15,975 

Vencor,  Inc.  DE,  PV  $  9,787 


211 


37 
SCHEDULE  B  (continued) : 

Mutual  Funds  Estimated  Current  Value 

AIM  Equity  Funds,  Constellation  Fund  $62,990 

Alliance  Growth  Fund  Class  A  $12,555 

Merrill  Lynch  Global  Allocation  Fund,  Class  A  $27,885 

Merrill  Lynch  Developing  Capital  Markets  Fund  $17,208 

New  York  Venture  Fund  $49,132 

Nicholas  Applegate  Core  Growth  Port  Class  A  $12,136 

Money  Funds 

CMA  Money  Fund  $  2,965 


212 


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August  15,    1994 


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MICHAEL   M.    BAYLSON 


via  meLaeopian  &  mat  class  mail 

Hoxiorable  Alien  Specter 
United  States  Senate 
303  Hart  senate  office  Building 
Washington,  D.C.   20510 


Re:  Sarah  s.  vanee 


Dear  Arlen: 

I  would  like  to  otrongly  recommend  Sarah  Vance,  who  hae 
been  nominated  by  President  Clinton  to  serve  as  United  States 
District  Court  Judge  for  the  Eastern  District  of  Louisiana. 

I  have  come  to  know  sarah  through  my  activities  in  the 
ABA  Antitrust  Section.  She  is  an  outstanding  lawyer,  a  partner 
in  the  firm  of  Stone,  Pigman,  Walther,  Wittman  £  Hutchinson  in 
New  Orleans,  and  very  much  deserves  this  nomination.  I  strongly 
recommend  that  you  fully  support  her  candidacy  when  she  appears 
in  front  of  the  Judiciary  Committee,  which  may  be  this  week. 

Sarah  graduated  first  in  her  class  from  Tulane„ 
University  Law  School,  and  has  written  outstanding  scholarly 
articles  in  the  field  of  antitrust  law.  I  am  enclosing  the  first 
page  from  her  most  recent  article,  which  has  received  widespread 
attention  among  antitrust  lawyers  for  its  analytical  approach  ho 
a  prime  health  care  reform  issue. 

I  also  learned  that  Sarah's  nomination  came  about  as  a 
result  of  her  reputation  at  the  Bar,  aB  she  has  not  been 
politically  active  (and  indeed,  some  other  politically  active 
candidates  who  had  previously  been  recommended  for  thin  position 
withdrew  their  names) .  Sarah  has  received  widespread  and 
bipartisan  support  from  the  New  Orleans  Bar  where  she  is 
uniformly  held  in  high  regard. 

Frances  and  I  got  to  know  the  personal  side  of  Sarah  at 
a  recent  antitrust  meeting.   She  i3  charming  and  vivacious,  but 
also  very  bright.   She  has  the  temperament  to  be  an  outstanding 
1udge. 


Please  do  call  if  you  have  any  questions 


MHB:lm 
enclosure 
cc  Sarah 


Vance,  Esquire 


213 


IMMUNITY  FOR  STATE-SANCTIONED  PROVIDER 
COLLABORATION  AFTER  TICOR 

Sarah  S.  Vance* 

In  the  current  public  debate  over  the  crisis  in  health  care,  health  care 
providers  have  Identified  the  antitrust  laws  as  a  significant  barrier  to 
collaborative  activities  that  could  reduce  health  care  costs  and  improve 
access  to  quality  health  care.1  As  a  result,  there  has  been  an  assault  on 
legislatures  at  both  the  stale  and  national  level  to  create  exemptions 
from  the  federal  and  state  antitrust  laws  for  various  forms  of  provider 
collaboration.  In  the  last  two  years,  these  efforts  came  to  fruition  in  the 
form  of  legislation  In  at  least  thirteen  states.  At  the  national  level,  the 
Federal  Trade  Commission  and  Department  of  Justice  issued  joint  pojicy 
statements  that  created  antitrust  safety  zones  exempting  some  hospital 
cooperation  ventures  from  antitrust  scrutiny.2 

*  Member  uf  die  Louisiana  Bar.  The  author  acknowledge*  th«  substantial  assistance  of 

Stephanie  D.  Shuler  in  the  preparation  of  this  article. 

'  E.g.,  Amsuoak  Hospital  Ast'v,  Hoi?itai.  Cms  ARnax-noK:  The  Hud  por  ak  Appro* 
rUATE  Ajrmxurr  Fquct  (1992)  (hereinafter  Hosmtal  Colaasojutioh].  Pharmaceutics! 
concerns  have  also  made  a  plea  for  antitrust  Immunity  w'ucu  their  prices  were  attacked 
by  the  ftintnn  Administration. 

1  U.5.  Department  of  justice  and  Federal  Trade  CoramUtion,  Statements  of  Antitrust 
Enforcement  Policy  in  the  Health  Care  Area  (Sept.  15, 1993)  (hereinafter  DOJ/FTC  Policy 
Statements!,  nprinud  m  64  Antitrust  tc  Trade  Reg.  Kep.  (BNA)  No.  1031  at  M.  The 
stated  purpose  of  the  Policy  Statements  is  to  resolve  any  antitrust  uncertainty  that  might 
deter  beneficial  mergers  or  joint  ventures.  They  create  antitrust  safety  zones  for  certain 
conduct:  (1)  hospital  mergers,  where  one  of  the  met  gins  hospitals  has  less  than  100  licensed 
beds  and  an  average  daily  inpatient  census  of  less  than  40  patients;  (2)  huspiud  juiiu 
venture*  involving  high  teehnrwngy  equipment  if  the  joint  venture  is  reasonably  necessary 
to  cover  the  cost  and  does  not  include  a  hospital  or  group  of  hospitals  (hat  could  have 
Offered  a  competing  service;  (3)  physicians'  provision  of  nonpriee  information  to  purchaser; 
of  health  care  services;  (4)  hospital  participauon  In  exchanges  of  price  and  cost  information 
where  the  survey  ii  managed  by  «  third  party,  the  information  collected  is  more  than  3 

utuiidu  old,  and  price  or  cost  data  are  baaed  on  data  from  at  least  5  hospital*  enri  aggregated 
SO  that  prices  Charged  by  particular  liospltais  cannot  be  identified;  and  (6)  joint  purchasing 
arrangemenu  among  health  care  providers  if  the  group's  purchases  account,  fur  less  thar. 
S5%  of  total  purchase*  of  the  pmdurt  or  service  and  the  cost  of  the  product  or  service 
accounts  for  leas  than  309b  of  each  participants'  total  reveruir*.  These  safety  zones  are  not 
absolute,  and  conduct  falling  within  the  soncs  may  still  be  challenged  in  "extraordinary 
circumstances."  The  Policy  Statements  also  set  forth  guidelines  for  analysing  conduct  of 
the  type  covered  hy  the  tones  that  does  not  meet  the  rones'  stated  criteria. 
Clearly  the  safety  sones  provided  in  the  Policy  .Statements  and  the  State  legislation 


400 


NOMINATION  OF  LOIS  J.  SCHIFFER,  WASH- 
INGTON, DC,  TO  BE  ASSISTANT  ATTORNEY 
GENERAL,  ENVIRONMENT  AND  NATURAL 
RESOURCES  DIVISION,  U.S.  DEPARTMENT 
OF  JUSTICE 


THURSDAY,  AUGUST  18,  1994 

U.S.  Senate, 
Committee  on  the  Judiciary, 

Washington,  DC. 

The  committee  met,  pursuant  to  notice,  at  9:36  a.m.,  in  room 
SD-226,  Hon.  Patrick  J.  Leahy  presiding. 
Also  Present:  Senator  Hatch. 

OPENING  STATEMENT  OF  SENATOR  LEAHY 

Senator  Leahy.  Good  morning.  I  welcome  you  here.  The  Judici- 
ary Committee  meets  today  for  two  reasons,  one,  of  course,  the 
Senate  has  decided  we  would  much  rather  be  here  in  Washington. 
With  all  due  respect  to  my  esteemed  colleague  from  the  House — 
and,  I  might  say,  someone  I  have  referred  to  as  the  best  represent- 
ative to  Congress  that  the  District  has  ever  had  by  far,  and  one  of 
the  best  that  any  Congressional  District  anywhere  in  the  country 
has  had— but  with  all  due  respect,  I  must  admit  that  given  a  choice 
of  August  in  Washington  or  August  in  Vermont,  I  have  a  certain 
parochial  desire  to  be  in  Vermont. 

We  are  here  to  consider  the  nomination  of  Lois  Schiffer  to  be  the 
Assistant  Attorney  General  for  the  Environment  and  Natural  Re- 
sources Division  of  the  Department  of  Justice.  We  all  know  that 
the  effective  enforcement  of  the  laws  designed  to  protect  our  envi- 
ronment and  our  quality  of  life  has  to  be  a  priority. 

We  are  hearing  a  lot  of  concerns  about  health  care  reform  and 
the  crime  bill,  but  it  is  also  important  that  we  make  time  to  fill 
this  essential  enforcement  post.  We  have  been  without  an  Assistant 
Attorney  General  to  head  the  Environment  and  Natural  Resources 
Division  of  the  Department  of  Justice  for  over  3  years,  as  I  under- 
stand it.  That  is  3  years  too  long. 

In  my  own  State,  from  Lake  Champlain  on  the  west,  to  the  Con- 
necticut River  on  the  east,  from  the  Northeast  Kingdom  down 
through  the  Green  Mountains,  we  are  a  State  that  is  defined  by  its 
environment.  Our  values,  our  lifestyle,  our  livelihood  is  directly  de- 
pendent on  our  air,  our  water  and  our  land  in  Vermont. 

In  terms  of  environmental  protection,  no  Federal  office  is  more 
critical  than  that  of  the  Assistant  Attorney  General  for  the  Envi- 
ronment and  Natural  Resources  Division  of  the  Department  of  Jus- 

(215) 


216 

tice.  The  detail  and  direction  of  the  Justice  Department's  environ- 
mental enforcement  policy  is  determined  and  articulated  from  your 
office.  It  holds  great  opportunities  for  innovation  and  leadership. 

I  believe  we  need  a  strong  and  decisive  leader,  an  effective  advo- 
cate for  environmental  enforcement,  a  champion  who  can  motivate 
not  only  this  Justice  Department  division,  but  its  client  depart- 
ments. 

You  are  serving  as  the  Acting  Assistant  Attorney  General.  I  be- 
lieve you  returned  to  the  Department  in  July  of  last  year.  Is  that 
right,  Ms.  Schiffer? 

Ms.  Schiffer.  That  is  correct,  Senator. 

Senator  Leahy.  You  had  been  in  private  practice  with  the  firm 
of  Nussbaum  and  Wald.  You  had  a  term  as  general  counsel  at  Na- 
tional Public  Radio.  You  have  taught  environmental  law,  and  you 
had  been  at  the  Department  in  what  was  known  as  the  Lands  Divi- 
sion and  is  now  the  Environment  and  Natural  Resources  Division. 

I  have  heard  from  a  number  of  distinguished  Vermonters  in  sup- 
port of  your  nomination.  We  have  received  letters  of  support  from 
the  National  Audubon  Society,  the  Sierra  Club,  and  others,  and  we 
will  put  those  in  the  record. 

[See  pages  290-302  for  above-mentioned  letters.] 

Senator  Leahy.  We  are  going  to  want  to  hear  first  from  Delegate 
Norton,  but  I  think  before  we  start,  why  don't  I  swear  you  in,  Ms. 
Schiffer. 

Do  you  solemnly  swear  the  testimony  you  give  in  this  matter  will 
be  the  truth,  the  whole  truth  and  nothing  but  the  truth,  so  help 
you  God? 

Ms.  Schiffer.  I  do. 

Senator  Leahy.  Before  we  begin,  do  you  also  have  any  members 
of  your  family  here  with  you? 

Ms.  Schiffer.  I  do,  Senator  Leahy. 

Senator  Leahy.  Would  you  note  them  because  some  day  you  may 
want  to  look  back  on  this  record  and  know  who  was  here? 

Ms.  Schiffer.  I  would  be  pleased  to  do  that.  I  have  with  me  my 
mother,  Clara  Schiffer. 

Senator  Leahy.  Ms.  Schiffer,  it  is  nice  to  have  you  here. 

Ms.  Schiffer.  My  sister,  Susan  Schiffer,  and  my  brother,  Alan 
Schiffer.  I  note  that  I  have  a  sister,  Nancy  Miller,  and  her  family 
who  live  in  Wisconsin  who  could  not  be  here  with  us. 

Senator  Leahy.  Thank  you. 

Ms.  Norton,  we  are  delighted  to  have  you  over  here.  You  honor 
the  Senate  by  coming  on  this  side  to  the  Capitol. 

STATEMENT  OF  HON.  ELEANOR  HOLMES  NORTON,  A 
DELEGATE  IN  CONGRESS  FROM  THE  DISTRICT  OF  COLUMBIA 

Delegate  Norton.  Thank  you  very  much,  Mr.  Chairman.  It  is  a 
great  pleasure  to  be  here  and  to  see  you  again,  and  I  very  much 
appreciate  your  very  kind  words  and  the  wonderful  service  that 
you  have  been  always  to  the  District  of  Columbia. 

It  is  a  very  special  pleasure  to  come  to  introduce  Lois  Schiffer. 
I  first  met  Lois  when  we  served  together  on  the  Board  of  Governors 
of  the  D.C.  bar,  so  I  can  testify  personally  to  her  ability  and  her 
leadership. 


217 

Seldom  does  a  nominee  for  a  Presidential  appointment  come  with 
such  broad  and  distinguished  experience  literally  from  within  the 
ranks  of  the  department.  Lois  has  had  very  extensive  experience  in 
the  Division  she  has  been  nominated  to  head  both  in  the  Carter 
and  the  Reagan  administrations.  She  is  a  proven  leader  of  the  Divi- 
sion. She  was  chief  of  the  General  Litigation  Section,  is  familiar 
with  its  70  statutes.  Her  proven  excellence  is  demonstrated  the  4 
years  in  which  she  received  the  Department's  outstanding  perform- 
ance rating. 

Lois  Schiffer  is  a  Phi  Beta  Kappa  graduate  of  Radcliffe  and  a 
cum  laude  graduate  of  Harvard  Law  School.  She  has  been  in  pri- 
vate practice.  Her  public  voluntary  service  experience  with  organi- 
zations such  as  American  Rivers  and  the  Women's  Legal  Defense 
Fund  has  been  especially  dedicated.  She  has  also  worked  profes- 
sionally in  the  public  service  sector  as  general  counsel  of  National 
Public  Radio  and  as  an  attorney  for  the  Center  for  Law  and  Policy. 

I  think,  Mr.  Chairman,  that  you  can  tell  that  Lois  Schiffer  is  un- 
daunted by  challenges,  such  as  those  that  she  will  find  at  the  Envi- 
ronment and  Natural  Resources  Division,  by  the  fact  that  one  of 
her  goals  is  to  hike  in  all  our  national  parks. 

It  is  a  special  pleasure  to  recommend  this  native  Washingtonian 
who  has  undoubtedly  already  completely  conquered  Rock  Creek 
Park.  [Laughter.] 

Senator  Leahy.  Thank  you.  I  understand,  because  of  what  is 
happening  over  in  the  House,  you  have  got  a  full  agenda  over 
there,  you  must  leave;  but  thank  you  very  much  for  coming  over 
here. 

Delegate  Norton.  Thank  you,  Mr.  Chairman. 

Senator  Leahy.  Ms.  Schiffer. 

TESTIMONY  OF  LOIS  J.  SCHIFFER,  WASHINGTON,  DC,  TO  BE 
ASSISTANT  ATTORNEY  GENERAL,  ENVIRONMENT  AND  NATU- 
RAL RESOURCES  DIVISION,  U.S.  DEPARTMENT  OF  JUSTICE 

Ms.  Schiffer.  Thank  you,  Senator  Leahy.  It  is  a  great  honor  to 
have  an  opportunity  to  come  before  this  committee  to  be  considered 
for  the  job  of  Assistant  Attorney  General  for  the  Environment  and 
Natural  Resources  Division.  The  Division  represents  the  people  of 
the  United  States  in  court  on  such  issues  as  pollution  control,  pub- 
lic lands  and  natural  resources,  wildlife,  and  trust  responsibility  for 
Native  Americans. 

It  works  on  cases  in  civil  court  and  it  prosecutes  criminal  cases 
against  polluters.  It  handles  cases  that  affect  whether  Americans 
will  have  clean  air  and  safe  drinking  water,  and  cases  that  relate 
to  the  stewardship  of  our  public  lands  and  natural  resources  for  fu- 
ture generations,  consistent  with  jobs  and  a  sustainable  economy. 
These  are  matters  of  great  importance  to  our  Nation.  It  would  be 
a  privilege  to  be  confirmed  for  the  job  of  working  toward  these 
goals. 

A  century  ago,  each  of  my  grandparents  emigrated  to  this  coun- 
try from  Eastern  Europe.  As  they  set  foot  on  these  shores,  they  had 
hope  that  their  lives  and  those  of  the  children  they  would  eventu- 
ally have  would  be  better.  My  parents,  their  children,  were  born 
into  families  with  no  money,  but  had  the  great  American  oppor- 
tunity of  education. 


218 

They  came  of  age  during  the  Great  Depression  of  the  1930's. 
Both  of  them  came  to  Washington  during  those  years  to  work  for 
the  government.  We  grew  up  believing  that  our  government  could 
do  good  and  make  life  better  for  the  American  people,  that  the  hope 
and  expectations  my  grandparents  brought  here  could  be  furthered 
in  this  way. 

I  love  this  land  in  all  of  its  geographic  variety,  its  diversity  and 
complexity.  I  have  hiked  and  rafted  in  many  places,  and  I  would 
say  for  you  I  have  hiked  the  Long  Trail  in  Vermont,  or  part  of  it, 
and  I  have  visited  almost  every  State.  The  job  for  which  you  are 
considering  me  would  make  me  a  principal  lawyer  for  the  shores 
my  grandparents  first  stepped  on,  for  the  shores  of  the  other  end 
of  our  Nation  as  well,  and  for  all  the  lands  and  mountains,  rivers 
and  cities  and  people  in  between. 

It  would  give  me  the  opportunity  to  carry  out  my  parents'  teach- 
ing that  our  government,  which  is,  after  all,  us,  can  do  good  for  the 
American  people.  It  would  give  me  the  opportunity  to  work  with 
Attorney  General  Reno,  whose  great  philosophy  is  that  you  can  do 
the  right  thing  if  you  really  want  to  do  it.  It  would  give  me  the  op- 
portunity to  work  for  clean  air  and  clean  water  for  all  the  people 
of  our  Nation,  and  for  sound  stewardship  of  our  lands  and  waters 
for  this  generation,  for  my  niece  and  nephews,  and  for  future  gen- 
erations. 

If  I  am  confirmed,  I  would  look  forward  to  working  with  this 
committee  and  with  the  Congress  on  these  matters.  The  position  is 
a  high  public  trust.  If  you  confirm  me,  it  would  be  an  honor  to  un- 
dertake it. 

Thank  you. 

QUESTIONING  BY  SENATOR  LEAHY 

Senator  Leahy.  Thank  you  very  much.  I  appreciate  your  concern 
for  our  land.  I  also  note  your  forward  thinking  in  hiking  the  Long 
Trail  up  in  Vermont  in  obvious  anticipation  of  this  hearing  today. 
[Laughter.] 

Then  when  they  picked  out  which  member  would  be  chairing,  it 
would  be  me. 

I  am  also  touched  by  what  you  said  about  your  grandparents.  My 
maternal  grandparents  came  to  this  country  not  speaking  a  word 
of  English,  my  grandfather  first.  He  worked  for  a  few  years  until 
he  had  enough  money  to  send  back  for  my  grandmother  and  the 
children  and  bring  them  to  this  country.  My  mother  grew  up  speak- 
ing English  only  when  she  started  school.  Actually,  it  was  the  same 
situation  with  my  wife. 

I  think  that  in  these  cases  you  ofttimes  bring  a  sense  of  what 
this  Nation  is,  because  obviously  they  were  attracted,  as  my  wife's 
parents  were,  as  my  grandparents  were,  to  come  to  this  country. 
I  think  we  grew  up  with  the  same  kind  of  sense  that  this  is  a  Na- 
tion to  be  valued  and  what  we  have  here  is  to  be  valued,  but  that 
we  also  have  a  responsibility  to  make  it  even  better  and  to  give  of 
ourselves  for  future  generations. 

You  have  had  a  chance  to  be  in  a  number  of  positions  where  you 
could  do  that.  You  have  served  as  a  section  chief  in  the  Division 
during  the  Carter  administration.  You  were  a  special  litigation 
counsel  during  the  Reagan  administration.  You  have  taught  envi- 


219 

ronmental  law  at  my  alma  mater,  Georgetown.  You  were  on  the  ad- 
ministration's transition  team. 

Taking  all  these  experiences,  what  do  you  see  as  the  primary 
mission  and  goals  of  the  Environment  and  Natural  Resources  Divi- 
sion? 

Ms.  SCHIFFER.  I  think  the  primary  mission  is  to  protect  our  envi- 
ronment in  a  way  that  is  practical  and  that  assures  that  there  is 
an  even-handed  approach;  that  is,  many  of  our  laws  really  require 
voluntary  compliance  by  Americans,  and  it  seems  to  me  what  is  im- 
portant is  to  encourage  that  voluntary  compliance  by  being  sure 
that  people  who  aren't  complying  are  brought  to  justice  so  that  the 
people  who  are  complying  are  not  disadvantaged  by  having  com- 
plied. So  I  see  the  mission  as  protecting  our  public  lands  and  wa- 
ters in  a  fair  way,  and  ste warding  our  lands  for  future  generations. 

Senator  Leahy.  Those  are  going  to  be  your  focus  and  priorities? 
What  do  you  think  is  probably  going  to  be  the  major  issue  facing 
you,  say,  between  now  and  the  end  of  the  year? 

Ms.  Schiffer.  I  think  the  most  major  issue  that  has  faced  me 
in  my  capacity  as  Acting  Assistant  Attorney  General  has  been  as- 
suring that  the  Environmental  Crime  Section  becomes  an  efficient 
and  effective  organization,  and  I  believe  that  we  have  taken  signifi- 
cant steps  toward  that  end. 

I  think  for  the  rest  of  this  year  what  will  be  important  is  assur- 
ing that  we  have  integrated  enforcement;  that  is,  that  civil  and 
criminal  laws  and  administrative  agency  action  work  together  ef- 
fectively, and  looking  at  specific  cases  such  as  the  Pacific  North- 
west spotted  owl  case,  which  is  a  matter  of  high  priority  to  the 
President,  and  assuring  that  that  case  moves  along  smoothly. 

Senator  Leahy.  During  the  last  year,  if  you  were  to  try  to  list 
some  of  the  most  important  accomplishments  of  the  Division,  but 
also  those  areas  where  you  probably  had  the  biggest  frustrations 
or  disappointments,  what  would  you  list  in  each  category? 

Ms.  Schiffer.  Well,  in  terms  of  accomplishments,  I  think  that 
we  really  now  have  a  very  strong  civil  enforcement  program.  We 
have  had  a  $1  billion  year;  that  is,  the  combination  of  penalties  and 
the  value  of  injunctive  relief  that  we  have  received  total  over  $1 
billion.  I  think  that  that  is  a  very  important  step  to  assuring  that 
the  American  public  is  having  its  pollution  laws  enforced  so  that 
it  will  have  a  healthy  environment  that  it  deserves. 

I  also  think  that  we  have  had  great  success  in  working  on  alter- 
native dispute  resolution  matters  and  in  moving  the  Division  to 
taking  a  hard  look  at  cases  to  see  how  they  can  be  handled  effi- 
ciently and  expeditiously,  including  being  settled  in  those  ways. 

In  terms  of  frustrations,  I  think  my  greatest  frustration  has  been 
the  Crime  Section,  and  we  are  hopefully  putting  that  behind  us 
and  turning  over  a  new  leaf  and  moving  forward  with  it. 

Senator  Leahy.  I  have  been  told  that  morale  in  the  past  within 
the  Division  has  been  quite  low.  What  have  you  been  doing  to  im- 
prove morale? 

Ms.  Schiffer.  I  think  now  morale  actually  is  quite  high,  and  I 
think  that  what  I  have  done  is  work  hard  to  convey  to  people,  first, 
that  I  think  that  career  attorneys  in  the  Division  are  a  very  impor- 
tant component  of  the  work  of  the  Division  and  I  value  the  work 
that  they  do  and  provide.  Second,  I  think  just  enthusiasm  for  the 


220 

fact  that  we  are  enforcing  the  laws  in  a  vigorous  way  has  done  a 
lot  to  improve  morale  there. 

Senator  Leahy.  Your  budget  has  a  significant  increase  in  the 
coming  year  in  the  resources  devoted  to  the  Environment  and  Nat- 
ural Resources  Division.  What  are  the  primary  things  that  increase 
would  be  used  for? 

Ms.  Schiffer.  For  several  matters.  First  of  all,  Congress  passed 
a  number  of  laws,  including  amendments  to  the  Clean  Air  Act,  and 
as  the  agencies  issue  regulations  under  those  laws,  we  anticipate 
challenges  to  the  regulations  that  we  have  to  defend. 

Second,  we  anticipate  even  broader  enforcement,  and  a  number 
of  the  additional  resources  will  go  toward  a  strengthened  enforce- 
ment program.  Finally,  we  will  have  a  number  of  challenges  to  ac- 
tions of  the  government  on  a  variety  of  new  theories,  such  as 
takings,  that  we  are  going  to  need  to  defend. 

Senator  Leahy.  Has  the  Environmental  Crime  Section  been  ag- 
gressive enough  in  the  past? 

Ms.  Schiffer.  It  is  hard  for  me  to  judge  the  past.  What  I  have 
wanted  very  much  to  do  is  turn  toward  the  future,  and  I  am  very 
committed  to  a  strong  and  effective  environmental  crimes  program, 
as  is  the  Attorney  General,  and  we  think  to  that  end  we  are  now 
bringing  strong  cases.  We  have  a  new  section  chief  who  is  a  career 
prosecutor. 

Senator  Leahy.  That  is  Ronald  Sarachan? 

Ms.  Schiffer.  That  is  Mr.  Sarachan,  and  he  has  a  number  of 
ideas  for  how  we  can  look  at  pollution  and  develop  cases  in  strong 
and  effective  ways.  So  I  think  we  are  moving  forward  with  the  vig- 
orous program  that  the  Attorney  General  and  I  want. 

Senator  Leahy,  Well,  would  there  be  other  personnel  changes  in 
that  area? 

Ms.  Schiffer.  I  have  suggested  to  Mr.  Sarachan  that  he  should 
take  a  look  at  the  management  of  the  entire  section,  and  he  is 
doing  that. 

Senator  Leahy.  What  about  changes  in  policy  since  January 
1993? 

Ms.  Schiffer.  Changes  in  policy? 

Senator  Leahy.  In  policy. 

Ms.  Schiffer.  I  think  that  I  have  been  back  at  the  Department 
since  July  1993  and  have  been  the  Acting  Assistant  Attorney  Gen- 
eral only  since  September  1993,  and  I  have  made  very  clear  that 
I  think  that  strong  and  effective  criminal  enforcement  is  an  impor- 
tant component,  and  the  Attorney  General  has  made  that  equally 
clear. 

Senator  Leahy.  Now,  we  have  received  letters  regarding  the  Di- 
vision's review  of  the  Rocky  Flats  case.  They  are  critical  of  the  re- 
view. They  suggest  that  it  contains  glaring  inconsistencies  and  in- 
accurate statements  based  on  incomplete  information. 

What  was  your  role  in  connection  with  the  Rocky  Flats  case  and 
of  that  review? 

Ms.  Schiffer.  First  of  all,  Senator,  I  have  to  say  that  I  don't 
agree  with  the  characterization  of  the  report.  But,  in  fact,  questions 
were  raised  about  the  Division's  handling  of  the  Rocky  Flats  case, 
which  is  a  case  that  was  completed  long  before  I  got  back  to  the 
Division. 


221 

The  Department  determined  that  an  internal  review  should  be 
done,  and  the  Associate  Attorney  General  asked  me  to  do  that.  I 
began  work  on  that,  but  when  I  was  named  to  be  head  of  the  Divi- 
sion it  was  determined  that  I  wouldn't  have  the  time  to  do  it  and 
so  that  responsibility  was  transferred  to  other  people  who  com- 
pleted the  report.  So  I  really  had  nothing  to  do  with  the  final  work 
product. 

Senator  Leahy.  We  have  also  received  letters  regarding  an  ex- 
pert witness,  Raleigh  Farlow,  against  the  Puregrow  Company  in  a 
Justice  Department  case.  Apparently,  questions  were  raised  about 
the  credentials  of  that  expert  witness.  When  did  you  first  become 
aware  of  that? 

Ms.  Schiffer.  Senator,  to  the  best  of  my  knowledge,  I  never 
heard  of  Raleigh  Farlow  until  the  spring  of  1994  when  I  read  about 
him  in  a  newspaper  article.  I  then  asked  about  him  and  what  I 
learned  is  that  he  was  a  potential  witness  in  the  Puregrow  case; 
that  some  questions  had  been  raised  about  representations  he  had 
made  about  his  credentials;  that  he  had  also  had  some  role  in  a  po- 
tential civil  case  for  the  Division,  and  that  pursuant  to  my  standing 
instructions  not  particular  to  that  case,  but  my  standing  instruc- 
tions that  any  serious  question  about  people's  credentials  must  be 
brought  to  the  attention  of  courts  and  the  other  side  in  cases,  the 
question  about  Mr.  Farlow's  credentials  was  made  known  to  the 
court.  But  I  really  never  heard  anything  about  it  until  the  spring 
of  1993  when  it  was  in  a  newspaper  article. 

Senator  Leahy.  When  I  met  with  Attorney  General  Reno  before 
she  was  appointed,  and  then  I  believe  also  in  answer  to  questions 
here,  she  was  concerned  about  the  fact  that  the  Department  of  Jus- 
tice in  Washington  sort  of  took  over  a  lot  of  these  environmental 
issues  and  did  not  pay  much  attention  to  either  the  local  prosecu- 
tors or  the  U.S.  attorneys. 

Have  you  taken  steps  to  change  that  from  what  it  had  been  in 
the  past? 

Ms.  Schiffer.  I  have,  Senator  Leahy.  My  view,  as  is  the  Attor- 
ney General's  view,  is  that  the  Justice  Department  in  Washington 
lawyers  need  to  work  in  partnership  with  the  U.S.  attorneys'  of- 
fices, and  I  have  taken  significant  steps  to  forward  that  partner- 
ship both  by  encouraging  all  of  our  lawyers  to  work  closely  with 
U.S.  attorneys'  offices  and  by  spending  a  fair  amount  of  time  talk- 
ing to  the  U.S.  attorneys  themselves  about  how  we  can  work  coop- 
eratively together.  I  have  been  told  by  a  number  of  U.S.  attorneys 
that  we  have  made  great  strides  in  that  direction. 

Senator  Leahy.  The  reason  I  mention  that  is  in  the  waning  days 
of  the  last  administration  there  was  a  revision  of  the  blue  sheet 
that  was  issued  to  the  U.S.  Attorney  Manual  that  basically  shifted 
everything  to  Washington,  which  rather  surprised  me  coming  from 
an  administration  that  always  talked  about  let's  get  everything  out 
of  Washington  and  get  it  back  to  the  people.  This  was  pushing  it 
all  back  to  Washington.  That  is  why  I  asked  the  question  now,  are 
we  doing  with  this  administration  what  the  last  administration 
talked  about  doing,  but  apparently  didn't  do  in  that  regard? 

Ms.  Schiffer.  Well,  Senator  Leahy,  the  blue  sheet,  as  I  am  sure 
you  are  aware,  is  an  amendment  to  the  U.S.  Attorney  Manual  that 
allocates  responsibility  for  handling  of  different  kinds  of  cases,  in- 


222 

eluding  criminal  cases.  The  last  administration  at  the  very  end,  in 
January  1993,  did  issue  a  blue  sheet  which  requires  prior  approval 
of  a  number  of  kinds  of  environmental  criminal  cases  in  Washing- 
ton. 

Once  I  became  the  acting  head  of  the  Division,  it  became  clear 
to  me  that  whatever  was  actually  happening  under  that  blue 
sheet — and,  in  fact,  we  weren't  stopping  any  prosecutions  under  it, 
but  the  blue  sheet  itself  had  become  a  significant  bone  of  conten- 
tion and  was  getting  in  the  way  of  what  I  saw  as  an  important 
partnership  between  the  U.S.  attorneys  and  the  main  Justice  De- 
partment. 

So  I  undertook,  with  the  head  of  the  relevant  committee  of  U.S. 
attorneys,  that  we  would  revise  that  blue  sheet  by  this  summer, 
and  we  have  been  working  in  a  cooperative  and  consensual  way 
with  broad  consultation  to  revise  that  blue  sheet. 

Senator  Leahy.  Well,  I  would  hope  so  because  I  think  that  we 
have  sometimes  some  very  real  concerns,  and  legitimate  concerns, 
in  States  all  over  the  country  that  when  a  great  deal  of  work  has 
been  done  at  the  local  level  both  with  the  local  prosecutors  and 
with  the  U.S.  attorney,  that  somebody  sitting  in  Washington  with- 
out the  knowledge  and  the  understanding  of  the  area  suddenly 
takes  a  decidedly  different  view. 

I  well  realize  that  there  are  some  cases,  because  of  their  very  sig- 
nificance, that  may  work  all  the  way  up  to  the  Attorney  General, 
but  I  should  think  that  should  be  more  the  exception  rather  than 
the  rule.  We  have  to  assume  good  U.S.  attorneys  will  be  appointed 
and  good  checks  and  balances  will  be  put  in  at  that  level,  and  we 
ought  to  give  them  some  ability  to  act. 

Ms.  Schiffer.  Senator  Leahy,  you  raise  a  very  good  and  impor- 
tant point.  In  fact,  one  of  the  things  we  have  been  encouraging  is 
the  establishment  of  what  are  called  law  enforcement  coordinating 
committees,  which  are  committees  that  work  out  of  the  U.S.  attor- 
neys' offices  and  include  people  from  the  U.S.  attorneys'  offices  and 
State  and  local  prosecutors.  The  main  Justice  Department  has  been 
working  with  those  committees,  so  that  indeed  we  are  very  much 
taking  advantage  of  the  great  experience  and  knowledge  that  local 
prosecutors  have.  I  agree  with  you.  I  think  it  is  important  that  the 
main  Justice  Department  work  cooperatively,  rather  than  as  an  ob- 
stacle to  assuring  that  the  laws  are  enforced. 

Senator  Leahy.  I  have  further  questions,  but  Senator  Hatch  is 
here  and  I  want  to  yield  to  him. 

OPENING  STATEMENT  OF  SENATOR  HATCH 

Senator  Hatch.  Well,  thank  you,  Mr.  Chairman. 

Good  morning.  We  are  happy  to  have  you  here  and  welcome  you 
to  the  committee. 

Ms.  Schiffer.  Thank  you,  Senator  Hatch. 

Senator  Hatch.  I  know  that  for  the  last  several  months  you  have 
eagerly  awaited  the  opportunity  to  come  before  this  committee  and 
discuss  your  views  on  a  number  of  issues  and  matters,  and  I  look 
forward  to  that  discussion. 

With  a  nominee  serving  in  an  acting  capacity  in  the  position  for 
which  she  seeks  confirmation,  this  nomination  has  unavoidably  be- 
come intertwined  with  ongoing  and  unfolding  events  involving  the 


223 

Environment  and  Natural  Resources  Division  which  the  nominee 
oversees.  So  I  look  forward  to  this  opportunity  for  all  involved  to 
resolve  some  of  the  questions  and  problems,  and  I  am  sure  you  can. 

Ms.  Schiffer,  as  you  know,  there  have  been  many  questions  and 
allegations  raised  in  the  press  and  elsewhere  concerning  the  Envi- 
ronmental Crimes  Section  of  the  Division.  So  I  think  this  is  an  op- 
portunity to  air  some  of  these  concerns  and  questions  and  to  have 
your  reaction  to  them. 

Further,  it  should  not  be  lost  in  all  of  this  that  your  Division  has 
very  critical  responsibilities  in  substantive  areas  that  impact  prop- 
erty rights — an  area  of  the  law  in  which  I  think  many  of  us,  and 
certainly  I,  have  a  particular  interest. 

I  have  always  believed  that  a  balance  has  to  be  struck  between 
the  very  important  need  to  protect  the  environment,  the  birthright 
of  posterity,  and  the  need  to  protect  private  property  rights,  which, 
of  course,  is  the  basis  of  civil  society. 

All  too  often,  in  the  rush  to  implement  and  to  enforce  environ- 
mental laws,  the  little  guy,  the  mom-and-pop  landowner  and  the 
storekeeper,  must  pay  a  disproportionate  cost  to  protect  the  envi- 
ronment by  surrendering  property.  Now,  I  hope  we  can  hear  your 
views  on  this  issue  and  on  other  important  substantive  issues.  So 
I  appreciate  your  being  here  and  I  am  glad  to  be  able  to  see  this 
hearing  proceed. 

Let  me  just  ask  a  number  of  questions  that  hopefully  will  put 
this  matter  to  rest.  The  Department  of  Justice,  in  general,  and  the 
Environment  and  Natural  Resources,  in  particular,  has  a  special 
obligation,  in  the  view  of  many  of  us,  to  protect  individuals  rights, 
including  property  rights. 

I  mention  the  Environment  and  Natural  Resources  Division  be- 
cause of  its  central  role  in  enforcing  environmental  laws  and  regu- 
lations. It  is  my  view  that  the  need  to  protect  the  public  from  envi- 
ronmental harm  must  be  balanced  against  the  constitutionally  pro- 
tected property  rights  of  the  individual,  and  the  key  is  where  do 
you  draw  the  line. 

Now,  I  have  to  tell  you  that  all  too  often  the  small  landowners 
have  found  themselves  at  the  mercy  of  Federal  departments  and 
agencies.  Mom-and-pop  ranchers  and  landowners,  including  those 
found  in  my  home  State  of  Utah,  have  been  unfairly  denied  their 
right  to  use  their  land  because,  for  instance,  the  land  may  be  con- 
sidered to  be  wetland,  even  if  the  planned  use  of  the  land  would 
not  be  considered  a  nuisance  at  common  law. 

In  the  recent  Supreme  Court  opinion  in  Dolan  v.  City  of  Tigart, 
the  Court  stated  that  it  saw,  quote,  "no  reason  why  the  Takings 
Clause  of  the  Fifth  Amendment,  as  part  of  the  Bill  of  Rights,  as 
the  First  or  Fourth  Amendment,  should  be  relegated  to  the  status 
of  a  poor  relation  in  these  comparable  circumstances,"  unquote. 

QUESTIONING  BY  SENATOR  HATCH 

Now,  in  your  opinion,  should  fifth  amendment  economic  rights  be 
accorded  the  same  degree  of  protection  as  other  individual  rights 
guaranteed  by  the  U.S.  Constitution,  and  why  or  why  not? 

Ms.  Schiffer.  Senator  Hatch,  before  I  answer  your  question,  if 
I  could  say,  as  I  said  to  Senator  Leahy,  I  had  hiked  on  the  Long 
Trail,  I  would  like  to  say  that  I  have  actually  hiked  in  each  of  the 


224 

national  parks  in  Utah,  too,  and  they  are  very  beautiful  national 
parks. 

Senator  Hatch.  They  really  are,  aren't  they? 

Ms.  Schiffer.  Lovely  national  parks,  indeed. 

Senator  Hatch.  I  think  that  is  pretty  good.  You  have  naturally 
risen  in  both  of  our  eyes,  I  have  to  say.  [Laughter.] 

Ms.  Schiffer.  I  am  pleased  to  know  that.  I  even  did  that  hiking 
before  I  knew  you  would  be  on  this  panel. 

Senator  Hatch.  Well,  that  is  even  more  impressive. 

Ms.  Schiffer.  My  understanding  of  my  duties  in  the  Justice  De- 
partment now  and,  if  I  am  confirmed,  what  my  duties  would  be 
would  be  to  support  and  uphold  the  Constitution  of  the  United 
States,  and  I  believe  that  means  every  provision  in  the  Constitu- 
tion. 

Senator  Hatch.  So  do  you  believe,  then,  that  fifth  amendment 
economic  rights  should  be  accorded  the  same  degree  of  protection 
as  these  other  rights? 

Ms.  Schiffer.  I  believe  that  all  of  the  provisions  of  the  Constitu- 
tion are  important  provisions  and  provide  important  protections  to 
the  American  people. 

Senator  Hatch.  Well,  do  you  believe  that  environmental  regula- 
tions should  ever  justify  the  abrogation  of  private  property  rights, 
and  if  so,  under  what  circumstances? 

Ms.  Schiffer.  Senator  Hatch,  what  the  fifth  amendment  pro- 
vides is  the  right  for  compensation  if  there  is  a  taking  of  property, 
and  I  believe  that  if  there  is  a  taking  of  property  within  the  mean- 
ing of  the  Constitution,  then  people  whose  property  is  taken  should 
be  compensated,  just  as  I  think  that  the  other  rights  that  are  pro- 
tected by  the  Constitution  should  be  carried  out  fully. 

Senator  Hatch.  Do  you  think  government  has  an  unlimited  right 
to  take  property  if  they  give  just  compensation? 

Ms.  Schiffer.  My  understanding  of  the  fifth  amendment  is  that 
what  it  provides  for  is  compensation  if  there  is  a  taking  of  prop- 
erty, ana  I  believe  it  is  a  development  of  other  law  that  sets  forth 
what  authority  government  has  to  act  to  take  property. 

Senator  Hatch.  Executive  Order  12630,  which  is  still  in  effect, 
requires  executive  departments  and  agencies  to  conduct  a  takings 
impact  analysis  when  implementing  regulations,  agency  actions 
and  policies  that  might  impact  private  property. 

My  understanding  is  that  the  Attorney  General  has  a  special  role 
in  implementing  the  Executive  order.  The  Department  of  Justice 
has  prepared  guidelines  for  the  Executive  order's  implementation 
and  oversees  the  implementation  process.  In  this  way,  Federal 
agencies  must  think  twice  before  private  property  rights  are  in- 
fringed. 

Now,  I  have  heard  that  Executive  Order  12630  is  a,  quote,  "dead 
letter,"  unquote.  It  is  simply  not  being  enforced.  Is  that  your  opin- 
ion, or  is  that  true? 

Ms.  Schiffer.  Senator  Hatch,  I  think  that  the  takings  Executive 
order  is  a  very  important  Executive  order.  It  mostly  affects  agen- 
cies that  are  regulation-writing  agencies  and  action  kinds  of  agen- 
cies, and  my  understanding  is  that  it  is  being  followed. 

Senator  Hatch.  Then  if  that  is  not  true,  can  you  give  me  con- 
crete recent  examples  where  the  Department  or  Federal  agencies 


225 

have  implemented  the  Executive  order  dealing  with  takings?  For 
instance,  has  the  Department  reviewed  any  agency  TIA's  or  its  own 
actions  that  have  implicated  the  Takings  Clause  in  the  last  2 
years? 

Ms.  Schiffer.  Senator  Hatch,  that  is  not  something  that,  to  my 
knowledge,  would  be  within  the  ambit  of  the  Environment  and 
Natural  Resources  Division  responsibility.  So  while  I  think  that 
carrying  out  that  Executive  order  is  important,  it  simply  wouldn't 
come  across  my  desk. 

Senator  Hatch.  Do  you  think  the  Executive  order  on  takings 
should  be  repealed  or  do  you  think  it  is  a  good  idea? 

Ms.  Schiffer.  I  believe  the  Administration  is  committed  to  hav- 
ing an  Executive  order  on  takings. 

Senator  Hatch.  In  that  form  or  in  some  other  form? 

Ms.  Schiffer.  I  am  just  not  certain. 

Senator  Hatch.  I  would  like  to  ask  you  several  questions  on  two 
recent  Supreme  Court  cases  and  the  Department's  and  your  Divi- 
sion's position  as  to  their  meaning  or  implementation. 

In  tne  Lucas  v.  South  Carolina  Coastal  Council  case — that  was 
back  in  1992— the  Court  held  that  a  regulatory  taking  occurs  and 
compensation  is  required  when  the  regulation,  quote,  "does  not 
substantially  advance  a  legitimate  State  interest,"  unquote.  The 
Court  also  held  that  no  public  purpose  or  legitimate  State  interest 
could  justify  a  regulatory  taking  if  the  regulation  physically  appro- 
priates or  seizes  property  or  denies  an  owner  of  all  economically 
beneficial  use  of  the  owner's  property. 

One  issue  left  open  by  the  Court,  as  I  view  it,  in  Lucas  is 
whether  property  owners  should  be  compensated  for,  quote,  "par- 
tial," unquote,  takings;  that  is,  where  regulation  leaves  some  eco- 
nomically beneficial  use  of  the  property.  The  Federal  Circuit,  in 
Florida  Rock  Industries  Inc.  v.  United  States,  in  1994,  took  the  po- 
sition that  property  owners  should  be  compensated  for  partial 
takings  and  developed  a  balancing  test  to  determine  when  partial 
takings  exist. 

Is  it  your  view  that  the  government  is  obligated  to  compensate 
owners  in  such  situations?  Has  the  Department  taken  a  stand  on 
this  issue,  for  instance,  and  if  it  has,  what  is  it  and  what  types  of 
standards  have  been  developed  to  distinguish  between  mere  dimi- 
nutions in  value  of  property  which  would  not  require  compensation 
and  partial  takings  of  property  which  would? 

Ms.  Schiffer.  Senator  Hatch,  as  you  know,  takings  law  is  a  very 
complicated  and  difficult  and  evolving  area. 

Senator  Hatch.  Yes,  it  is. 

Ms.  Schiffer.  And  you  are  raising  questions  about  specific  cases, 
some  of  which  are  still  in  litigation,  and  so  it  is  difficult  for  me  to 
address  particular  positions.  What  I  can  certainly  commit  to  you  is 
that  I  am  quite  pleased  to  be  working  with  you  on  the  general  pol- 
icy issues  related  to  takings,  while  respecting  the  fact  that  the  posi- 
tions that  we  take  in  particular  lawsuits,  of  course,  are  something 
that  really  are  apart  from  what  we  might  discuss. 

Senator  Hatch.  But  do  you  believe  that  there  should  be  com- 
pensation for  partial  takings,  as  well  as  total  takings? 

Ms.  Schiffer.  I  think  the  question  of  what  is  a  taking  is  one 
which  is  difficult  to  address  and  is  an  evolving  area  of  the  law.  As 


226 

I  indicated,  I  would  be  pleased  to  hear  your  views  about  it  and 
pleased  to  work  with  you  on  the  general  policy  question. 

Senator  Hatch.  Well,  thank  you.  We  appreciate  it  because  my 
view  is  that  partial  takings  ought  to  be  compensated  for,  too,  and 
that  needs  to  be  defined  and  it  needs  to  be  defined  well. 

The  other  major  Supreme  Court  case  that  constitutes  the 
Takings  Clause  of  the  fifth  amendment  was  just  recently  decided 
and,  of  course,  that  is  Dolan  v.  City  of  Tigart.  In  Dolan,  the  Court 
looked  to  the  law  of,  quote,  "unconstitutional  conditions,"  unquote, 
and  reaffirmed  the  basic  right  that  government  may  not  require  a 
person  to  surrender  a  constitutional  right — here,  just  compensa- 
tion, when  10  percent  of  the  Dolan's  property  was  taken  for  the 
public  use  of  creating  a  bicycle  path  and  an  improved  drainage  sys- 
tem— in  exchange  for  a  discretionary  benefit  conferred  by  the  gov- 
ernment where  the  property  sought  has  little  or  no  relation  to  the 
benefit. 

Now,  to  determine  if  an  unconstitutional  condition  occurred,  the 
Court  first  inquired  whether  there  exists  a,  quote,  "substantial  re- 
lationship," unquote,  between  the  conditions  imposed  by  the  permit 
and  a  legitimate  government  interest.  The  Court  next  inquired 
whether  there  was  some  kind  of  factual  showing  to  demonstrate  a 
harm  that  would  justify  the  government's  restriction  on  private 
property.  There  must  be,  according  to  the  Court,  a,  quote,  "rough 
proportionality,"  unquote,  between  the  denial  of  a  permit  and  the 
individualized  harm  the  applicant  would  cause  if  the  permit  was 
granted. 

Significantly,  the  Court  put  the  burden  on  the  government  of 
concretely  demonstrating  that  granting  the  applicant  a  permit 
would  cause  harm  to  the  public.  Now,  my  understanding  is  that 
this  works  a  major  change  in  the  law.  In  your  view,  exactly  how 
does  Dolan  change  the  way  environmental  law  will  be  enforced, 
and  maybe  I  could  add  what  steps  does  the  Department  intend  to 
take  to  implement  the  Dolan  decision? 

Ms.  Schiffer.  Senator,  the  Dolan  decision  is  a  new  ruling  of  the 
Supreme  Court  and  we  will  follow  the  Dolan  ruling  just  as  we 
would  follow  other  decisions  of  the  Supreme  Court  in  looking  at 
and  briefing  cases. 

Senator  Hatch.  So  you  don't  know  what  you  are  going  to  do  with 
regard  to  it  at  this  particular  point? 

Ms.  Schiffer.  What  we  will  do  is  look  at  the  Dolan  case  as  au- 
thority, just  as  we  would  look  at  any  other  Supreme  Court  case  as 
authority,  and  determine  whether  it  affects  the  positions  that  we 
are  taking  in  any  cases. 

Senator  Hatch.  Is  the  Department  guiding  any  of  the  Federal 
agencies  with  respect  to  Dolan  and  what  has  happened  there? 

Ms.  Schiffer.  We  have  had  one  meeting  to  discuss  what  effect 
Dolan  might  have  on  cases  of  other  agencies.  That  is  what  we  have 
done  so  far. 

Senator  Hatch.  Do  you  believe  that  Executive  Order  12630  will 
be  modified  to  reflect  the  Lucas  and  Dolan  decisions? 

Ms.  Schiffer.  I  simply  don't  know  about  that. 

Senator  Hatch.  Among  the  important  developments  in  the  past 
year  regarding  the  Environmental  Crimes  Section  at  the  Justice 
Department  has  been  the  release  of  two  internal  reports,  one  in 


227 

March  and  one  in  April  1994.  Could  you  describe  for  us  how  and 
why  these  reviews  were  done  and  your  involvement  in  them? 

Ms.  Schiffer.  Certainly.  Long  before  I  got  back  to  the  Depart- 
ment, questions  had  been  raised  about  how  the  Environmental 
Crimes  Section  had  handled  certain  criminal  cases  that  were  closed 
caSes — that  is,  they  were  cases  I  had  nothing  to  do  with — and  to 
take  a  look  at  them.  The  Attorney  General  determined  that  inter- 
nal reviews  should  be  done. 

One  internal  review  was  set  up  to  look  particularly  at  six  cases 
and,  more  broadly,  at  the  operation  of  the  Section,  and  another  in- 
ternal review  was  set  up  to  look  at  a  particular  case,  the  Rocky 
Flats  case.  . 

As  to  the  first  internal  review  to  look  at  six  cases  and  the  Divi- 
sion more  broadly,  I  really  had  nothing  to  do  with  that  review.  It 
was  a  review  that  was  conducted  by  career  prosecutors  in  the  De- 
partment. They  took  a  very  detailed  and  thorough  look  both  at  the 
six  cases  and  at  management  in  the  section,  and  they  issued  a  re- 
port in  March  1994  which  is  a  thorough  and  detailed  analysis, 
which  I  have  read,  but  which  I  had  nothing  to  do  with  the  writing 

of. 

As  to  the  Rocky  Flats  internal  review,  as  I  responded  before,  that 
was  a  review  that  when  I  first  came  back  to  the  Department  I  was 
asked  to  work  on.  I  did  work  on  it  for  some  time.  When  I  was 
named  to  be  head  of  the  Division,  I  was  taken  off  of  that  because 
I  had  more  work  than  I  could  do,  and  it  was  given  to  other  people 
who  completed  that  report,  so  that  I  really  had  nothing  to  do  with 
the  final  work  product  of  that  report. 

Senator  Hatch.  Senator  Leahy  has  said  that  I  can  continue 
these  questions  even  though  I  have  gone  on  for  quite  a  while  here. 
He  said  as  long  as  I  don't  ask  anything  dumb,  and  I  can't 

Senator  Leahy.  I  whispered  that  part.  You  weren't  supposed  to 
repeat  it. 

Ms.  Schiffer.  Well,  I  would  never  say  you  had  done  that,  Sen- 
ator. 

Senator  Hatch.  Naturally,  being  a  Republican,  I  cant  quite 
guarantee  that.  [Laughter.] 

Senator  Leahy.  Senator  Hatch  and  I  have  gone  through  this  Al- 
phonse  Gaston  routine  for  so  many  years,  we  are  about  to  patent 
it  if  we  could  figure  out  how  to  do  it. 

Senator  Hatch.  Well,  that  is  right. 

Let  me  just  proceed.  You  are  doing  fine.  You  are  not  giving  us 
a  lot  of  definitive  answers.  [Laughter.] 

Senator  Leahy.  And  that  is  all  right.  [Laughter.] 

Senator  Hatch.  That  is  typical  of  Democrats,  is  all  I  can  say. 

Senator  Leahy.  We  just  want  them  warm  and  fuzzy. 

Senator  Hatch.  That  is  right. 

Senator  Leahy.  Provided  these  crimes  are  prosecuted,  I  might 
say. 

Senator  Hatch.  I  want  you  to  know  that  I  have  liked  you  from 
the  beginning,  so  don't  worry  about  it.  [Laughter.] 

The  325-page  report  on  the  internal  review  of  the  environmental 
crimes  program  dated  March  10,  1994,  states  the  following: 

We  have  found  that  accusations  of  prosecutorial  misconduct  arise  in  largest  meas- 
ure from  innuendo  and  unsubstantiated  suspicions.  We  have  found  no  evidence  to 


228 

substantiate  the  allegations  that  Justice  Department  officials  or  employees  relied  on 
improper  criteria  in  prosecuting  or  declining  to  prosecute  environmental  crime 
cases.  To  be  sure,  the  Department's  environmental  crimes  program  can  be  improved, 
and  we  provide  some  recommendations  in  that  regard.  But  the  most  formidable 
challenge  currently  facing  the  Justice  Department  is  one  that  should  not  exist  at 
all.  As  a  result  of  unfounded  accusations.  Department  attorneys  must  exercise  pros- 
ecutorial discretion  in  the  atmosphere  of  distrust.  The  Department's  environmental 
crimes  program  will  not  function  effectively  unless  the  ECS  can  dispel  that  distrust 
and  build  cooperative  working  relationships  with  all  of  its  partners  in  the  environ- 
mental enforcement  effort. 

Now,  do  you  agree  with  that  assessment? 

Ms.  SCHIFFER.  I  agree  that  it  is  very  important  that  all  of  us  in 
the  main  Justice  Department  have  good  working  partnerships  with 
others  who  are  involved  in  environmental  criminal  enforcement, 
and  I  believe  I  have  already  outlined  a  number  of  steps  that  I  have 
taken  to  see  that  that  happens. 

Senator  Hatch.  Among  the  conclusions  in  the  April  report  was 
the  following: 

The  Department  of  Justice  has  an  obligation  to  protect  its  line  attorneys,  particu- 
larly where  there  are  no  credible  allegations  of  misconduct.  Such  support  is  even 
more  appropriate  where  every  critical  decision  was  made  with  concurrence  at  the 
highest  levels  of  the  Department. 

That  is  a  memorandum  of  April  8,  1994,  to  Associate  Attorney  Gen- 
eral Webster  Hubbell  from  Mark  H.  Dubester. 

Do  you  agree  or  disagree  with  that  statement? 

Ms.  Schiffer.  I  agree  that  it  is  very  important  that  the  Depart- 
ment supervise  its  line  attorneys,  and  then,  if  the  line  attorneys 
are  doing  what  their  supervisors  think  is  right,  that  it  stands  be- 
hind them. 

Senator  Hatch.  I  really  agree  with  that.  I  think  you  have  to  do 
that.  What,  if  anything,  have  you  done  to  address  those  concerns, 
or  intend  to  do? 

Ms.  Schiffer.  Senator  Hatch,  I  have  made  as  clear  as  I  know 
how  to  the  lawyers  in  the  Division  that  if  they  let  me  know  what 
they  are  doing  and  I  concur  with  it  and  then  they  go  do  it  that  we 
will  stand  behind  them,  and  I  think  I  have  made  that  clear. 

Senator  Hatch.  That  is  important.  Go  ahead.  I  didn't  mean  to 
cut  you  off. 

Ms.  Schiffer.  That  is  my  response. 

Senator  Hatch.  After  concerns  had  been  raised  concerning  the 
handling  of  certain  cases  in  the  Environmental  Crimes  Section,  an 
internal  review  conducted  by  the  Justice  Department  exonerated 
that  section,  and  I  have  previously  referred  to  that  report.  Have 
you  endorsed  and  adopted  the  findings  of  the  report  on  that  inter- 
nal investigation,  and  were  you  ordered  to  do  so  by  the  Attorney 
General? 

Ms.  Schiffer.  There  is  misinformation  about  what  the  Attorney 
General  ordered  me  to  do,  and  she  never  ordered  me  to  do  anything 
in  this  regard.  There  were  really  two  separate  parts  of  that  report, 
a  part  related  to  six  cases  and  then  a  part  about  management. 

As  to  the  part  about  the  six  cases,  those  were  cases  that  were 
handled  before  I  got  to  the  Division  and  were  closed  before  it.  I  had 
no  personal  knowledge  of  those  cases.  I  think  the  report,  which  was 
done  by  career  prosecutors,  was  very  thorough  and  detailed,  and  I 
have  no  reason  to  question  its  findings  as  to  the  six  cases  and  so 
I  adopt  those  findings. 


229 

As  to  the  management  part  of  the  report,  where  I  have  personal 
knowledge,  I  think  it  was  a  thorough  job.  I  agree  with  some  of  the 
conclusions  and  disagree  with  others  of  them. 

Senator  Hatch.  Now,  it  has  been  reported  that  an  internal 
memo  written  by  18  staff  trial  lawyers  at  the  Environmental 
Crimes  Section  expressed  the  opinion  to  the  Attorney  General  that 
"It  is  wrong  for  the  Department  of  Justice  to  remain  silent  while 
the  reputations  and  efforts  of  Department  attorneys  are  smeared 
by  Congress  and  in  the  press."  Do  you  agree  with  that  judgment? 

Ms.  Schiffer.  I  believe  the  Attorney  General  has  issued  a  state- 
ment after  those  internal  reviews  making  clear  that  she  thinks 
that  those  internal  reviews  put  the  past  behind  us  and  that  she 
supports  the  line  attorneys  in  the  Division. 

Senator  Hatch.  I  think  what  it  comes  down  to,  basically,  is  this. 
You  know,  I  have  been  very  concerned  that  we  up  here  have  cer- 
tain rights  to  obtain  certain  things,  but  there  are  certain  lines  that 
have  to  be  drawn,  too.  If  the  line  attorneys  are  not  protected  in 
their  right  to  make  the  appropriate  decisions  here,  or  if  thev  can 
be  badgered  or  influenced  unduly  by  Members  of  Congress,  that  is 
not  a  good  situation. 

I  think  you  have  to  stand  behind  those  line  attorneys  even  if  it 
means  refusing  to  cooperate  with  somebody  who  may  have  tremen- 
dous power  up  here,  and  that  even  includes  Senator  Leahy. 

Senator  Leahy.  I  would  hope  that  the  Senator  doesn't  include 
himself  because  it  would  go  quite  contrary  to  the  position  he  took 
when  he  was  on  the  majority  side  here  in  this  committee. 

I  would  put  in  the  record  at  this  point  the  Congressional  Re- 
search Service  review  of  legal  and  historical  precedents  regarding 
oversight  of  the  Department  of  Justice  during  the  past  70  years>V 
It  goes  into  numerous,  numerous  instances  where  committees  like 
ours  obtained  internal  documents  from  the  Department  in  a  variety 
of  circumstances  in  which  we  interviewed  informally  and  formally 
subordinate  Department  of  Justice  employees — FBI  agents,  line  at- 
torneys, and  others. 

It  notes  that  the  U.S.  Supreme  Court  has  specifically  ruled  that 
congressional  investigations  of  the  Justice  Department,  including 
investigations  of  whether  the  Department  is  failing  to  pursue  meri- 
torious cases,  are  constitutionally  proper  activity. 

Senator  Hatch.  I  don't  disagree  with  that. 

Senator  Leahy.  We  also  conducted  in  this  committee  an  impor- 
tant investigation  of  the  Public  Integrity  Section  of  the  Justice  De- 
partment in  1980-81,  when  all  of  us,  including  Senator  Hatch  and 
myself,  insisted  on  reviewing  internal  Justice  Department  docu- 
ments and  interviewing  Justice  line  attorneys. 

I  recall  one  quote  from  that  very  clearly — and  I  just  want  to 
make  sure  that  we  don't  have  an  inconsistent  quote  today — one 
that  stuck  in  my  mind  so  much  that  I  wrote  it  down  at  the  time, 
which  was  the  Judiciary  Committee  has  a  right  under  our  constitu- 
tional system  of  checks  and  balances  to  oversee  the  Department  of 
Justice  and  determine  that  they  are  doing  their  job  responsibly  and 
effectively. 


\J/See  hearing  before  the  Subcommittee  on  Oversight  and  Investigations  of  the  Committee  on 
Energy  and  Commerce,  House  of  Representatives,  103d  Cong.,  1st  sess.,  Nov.  3,  1993:  EPA's 
Criminal  Enforcement  Program,  pp.  12-41. 


230 

I  thought  Senator  Hatch  was  right  when  he  said  that  back  about 
12,  13  years  ago,  and  I  am  sure  he  must  feel  that  way  today. 

Senator  Hatch.  As  naive  as  I  was  then,  I  would  still  reaffirm 
that  right.  I  think  that  we  do  have  a  right  to  do  this,  but  I  think 
there  are  limits  to  that  right,  too,  and  especially  in  ongoing  litiga- 
tion and  in  certain  other  areas.  So  I  think  it  is  important,  and  the 
purpose  of  my  questions  is  to 

Senator  Leahy.  I  would  just  note  that  no  such  limit  was  indi- 
cated by  the  Senator  from  Utah  or  anybody  else  at  that  time. 

Senator  Hatch.  Well,  I  could  have  given  you  instances  then 
where  I  believe  it  would  have  been  highly  improper  for  even  Con- 
gress, with  all  of  its  August  power,  to  demand  certain  things  of  the 
executive  branch  of  government.  There  are  appropriate  instances 
where  especially  in  the  prosecutorial  section,  whether  civil  or  crimi- 
nal, where  Members  of  Congress  are  not  entitled  to  some  of  the  in- 
formation. 

Senator  Leahy.  And  nobody  disagrees  with  that. 

Senator  Hatch.  No.  I  agree,  and  I  think  that  there  need  to  be 
the  appropriate  lines  drawn,  and  there  was  concern  in  some  of 
these  cases  that  some  of  these  line  attorneys  were  not  being  backed 
up  by  the  Department,  and  I  think  properly  so. 

I  think  you  have  to  determine  what  the  lines  are,  but  then  we 
have  to  know  what  they  are,  and  we  may  differ;  we  may  disagree 
with  that.  Then  it  comes  down  to  a  head-butting  situation  where 
one  side  or  the  other  is  either  going  to  give  in  or  we  are  going  to 
fight  it  out  in  the  courts.  But  there  are  certain  lines  that  have  to 
be  drawn  in  these  areas. 

I  am  not  finding  particular  fault  with  anybody  who  has  de- 
manded materials.  It  is  just  a  matter  of  concern,  and  that  is  why 
we  are  bringing  it.  We  know  that  there  were  some  people  who  were 
very  upset  and  felt  they  weren't  backed  by  the  Justice  Department 
in  areas  where  they  should  have  been.  Now,  that  is  a  determina- 
tion that  has  to  be  made  by  you  and  I  just  want  you  to  be  aware 
that  there  are  those  up  here  who  are  very  concerned  about  it,  in- 
cluding myself. 

Ms.  Schiffer.  Senator  Hatch,  I  appreciate  your  views.  It  is  my 
view  that  I  am  very,  very  concerned  about  interviews  of  line  attor- 
neys and  I  think  that  there  is  an  important  oversight  function  by 
Congress,  but  there  is  also  an  important  need  to  be  sure  that  gov- 
ernment enforcement,  and  particularly  criminal  enforcement,  is 
done  in  an  even-handed  and  impartial  way,  and  seems  even- 
handed  and  impartial. 

To  that  end,  I  think  that  it  is  only  in  the  most  exceptional  cir- 
cumstances that  line  attorneys  should  be  subject  to  interviews.  I 
think  it  is  perfectly  appropriate  to  talk  to  or  interview  the  political 
appointees  or  supervisors  about  policy  matters. 

Senator  Hatch.  Well,  I  agree  with  that  and  I  think  it  is  a  good 
statement.  Frankly,  I  am  glad  to  have  this  hearing  occur  and  I  am 
sorry  you  have  been  delayed  as  long  as  you  have.  I  just  want  to 
apologize  to  you  if  there  has  been  any  delay  that  you  feel  was  inap- 
propriate under  the  circumstances,  but  I  am  really  happy  to  have 
you  here  and  intend  to  support  you. 

Ms.  Schiffer.  Thank  you,  Senator  Hatch. 


231 

Senator  Leahy.  I  must  say  I  totally  agree  with  your  statement 
that  you  just  made  on  that.  I  have  been  at  both  ends  of  this,  both 
as  a  member  of  a  congressional  panel  looking  into  this  and  prior 
to  that  as  a  prosecutor,  and  I  think  that  there  are  certain  areas, 
especially  in  ongoing  matters,  where  the  prosecution  has  to  be  left 
to  itself,  with  the  normal  checks  and  balances  that  we  have  within 
our  court  system,  and  not  with  interference  which  may  be  seen  as 
attempts  to  influence  the  outcome  by  congressional  or  other  execu- 
tive branch  people. 

At  the  same  time,  there  are,  of  course,  things  that  are  within  the 
proper  oversight  capacity  of  the  appropriate  committees  in  the  Con- 
gress, and  that  is  why  I  put  that  review  in  the  record. 

Well,  thank  you  very  much,  and  I  appreciate  your  being  here.  We 
may  have  some  other  questions  for  the  record  and  I  will  keep  the 
record  open  for  the  rest  of  today  for  that.  I  will  urge  the  chairman 
of  the  full  committee  to  move  forward  with  this  as  soon  as  possible. 

Ms.  Schiffer.  Thank  you. 

Senator  Leahy.  Thank  you. 

We  stand  adjourned. 

[Whereupon,  at  10:29  a.m.,  the  committee  was  adjourned.] 

[Submissions  for  the  record  follow:] 


232 

SUBMISSIONS  FOR  THE  RECORD 


I.  Biographical  Information  (Public) 

1.  Full  name  (include  any  former  names  used) : 

Lois  Jane  Schiffer 

2.  Address:   List  current  place  of  residence  and  office 
address (es) . 

Residence:   4640  Brandywine  Street,  N.W. 
Washington,  D.C.   20016 

Office:     Environment  and  Natural  Resources  Division 
U.S.  Department  of  Justice 
10th  Street  and  Constitution  Avenue,  N.W. 
Washington,  D.C.   20530 

3.  Date  and  place  of  birth: 

February  22,  1945;  Washington,  D.C. 

4.  Marital  Status  (include  maiden  name  of  wife,  or  husband's 
name) .   List  spouse's  occupation,  employer's  name  and  business 
address (es) . 

Single. 

5.  Education:   List  each  college  and  law  school  you  have 
attended,  including  dates  of  attendance,  degrees  received,  and 
dates  degrees  were  granted. 

a.  Radcliffe  College,  Cambridge,  Massachusetts.   Attended 
September  1962  -  June  1966;  A.B.  magna  cum  laude  degree, 
granted  June  1966. 

b.  Harvard  Law  School,  Cambridge,  Massachusetts.  Attended 
September  1966  -  June  1969;  J.D.  cum  laude  degree,  granted 
June  1969. 

c.  Also  attended:  University  of  California  at  Berkeley, 
Summer  1965;  Oberlin  College  Summer  program  in  France, 
Summer  1963. 

6.  Employment  Record:   List  (by  year)  all  business  or 
professional  corporations,  companies,  firms,  or  other 
enterprises,  partnerships,  institutions  and  organizations, 
nonprofit  or  otherwise,  including  firms,  with  which  you  were 
connected  as  an  officer,  director,  partner,  proprietor,  or 
employee  since  graduation  from  college. 

July  1993  -  present:   Special  Assistant  to  Attorney  General 
(July-August  1993),  Deputy  Assistant  Attorney  General  (August- 
September  1993)  and  Acting  Assistant  Attorney  General  (September 


233 


27-present) ,  Environment  and  Natural  Resources  Division,  U.S. 
Department  of  Justice,  Washington,  D.C. 

October  1989  -  July  1993:   Partner,  Nussbaum  &  Wald, 
Washington,  D.C.  (law  firm). 

January  1986  -  present:   Adjunct  professor  of  environmental 
law,  Georgetown  University  Law  Center,  Washington,  D.C. 

June  1984  -  September  1989:   General  Counsel  and  Secretary 
to  the  Board  of  Directors,  National  Public  Radio,  Washington, 
D.C.  (non-profit  corporation). 

January  1978  -  June  1984:   Chief,  General  Litigation  Section 
(1978-1981)  and  Special  Litigation  Counsel  (1981-1984),  Land  and 
Natural  Resources  Division,  U.S. Department  of  Justice, 
Washington,  D.C. 

January  1974  -  January  1978:   Staff  Attorney,  Center  for  Law 
and  Social  Policy,  Washington,  D.C.  (public  interest  law  firm). 

September  1971  -  January  1974:   Associate,  Leva,  Hawes, 
Symington,  Martin  &  Oppenheimer,  Washington,  D.C.  (law  firm). 

August  1971:   Consultant  to  Ford  Foundation  Project  on 
Corporate  Responsibility,  Washington,  D.C. 

June  1970  -  July  1971:   Court  Law  Clerk,  U.S.  Court  of 
Appeals  for  District  of  Columbia  Circuit,  Washington,  D.C. 

September  1969  -  May  1970:   Staff  Attorney,  Boston  Legal 
Assistance  Project,  Boston,  Massachusetts  (legal  services 
office) . 

Summer  1968  -  Summer  Associate,  Kaye,  Scholer,  Fierman, 
Hayes  and  Handler,  New  York,  N.Y.  (law  firm). 

Summer  1967  -  Summer  Intern,  NAACP  Legal  Defense  Fund, 
Jackson,  Mississippi. 

Summer  1966  -  Summer  Intern,  Office  of  Economic  Opportunity, 
Washington,  D.C.  (government  agency) . 

Other  Board  Memberships:   I  have  been  on  the  Boards  of 
Directors  of  the  following  organizations:   Washington  Council  of 
Lawyers  (approx.  1972-1984);  Women's  Legal  Defense  Fund  (approx. 
1975-1987);  District  of  Columbia  Bar  (1979-1989);  American  Civil 
Liberties  Union  of  the  National  Capital  Area  (1982-1993); 
National  American  Civil  Liberties  Union  (1991-1993);  American 
Rivers  (1991-1993);  Frederick  B.  Abramson  Memorial  Foundation 
(1992-present) . 


234 


7.  Military  Service:   Have  you  had  any  military  service?   If  so, 
give  particulars,  including  the  dates,  branch  of  service,  rank  or 
rate,  serial  number  and  type  of  discharge  received. 

No. 

8.  Honors  and  Awards:   List  any  scholarships,  fellowships, 
honorary  degrees,  and  honorary  society  memberships  that  you 
believe  would  be  of  interest  to  the  Committee. 

General  Mills  Scholarship  (Award,  Third  Place  National 
Winner,  Betty  Crocker  Search  for  Future  Homemaker  of  Tomorrow) . 

Phi  Beta  Kappa. 

Mothers  and  Daughters  of  Extraordinary  Achievement  Award 
(National  Women's  Law  Center,  Washington,  D.C.),  1991. 

Fellow,  American  Bar  Foundation 

Department  of  Justice  Outstanding  Performance  Rating  (1979- 
1983)  . 

9.  Par  Associations:   List  all  bar  associations,  legal  or 
judicial-related  committees  or  conferences  of  which  you  are  or 
have  been  a  member  and  give  the  titles  and  dates  of  any  offices 
which  you  have  held  in  such  groups. 

District  of  Columbia  Bar,  Member  1972  to  Present:   Member, 
Board  of  Governors  (1979-1989);  Member  of  the  following 
committees  of  the  D.C.  Bar — Committee  on  Criminal  Law  and 
Individual  Rights  (Steering  Committee,  approx.  1976-1978) ; 
Nominating  Committee  (1976-1977);  Friedman  Committee  to  Review 
the  Disciplinary  System  (approx.  1982-1983) ;  Liaison  to  Section 
on  Environmental  Law  (approx.  1985-1989) ;  Budget  Committee 
(approx.  1983) ;  Section  on  Administrative  Law  (approx.  1980- 
present) ;  Section  on  Environmental  Law  (approx.  1980-present) . 

Advisory  Committee  on  Procedures,  United  States  Court  of 
Appeals  for  the  District  of  Columbia  Circuit  (approx.  1985  - 
1990) . 

Member,  Judicial  Conference  for  the  District  of  Columbia 
Circuit  (most  years  since  1976)  . 

Member,  Judicial  Conference  for  District  of  Columbia  (local) 
Courts  (approx.  1982) . 

American  Bar  Association  (approx.  1974-present) :   Member  of 
Steering  Committee,  Forum  Committee  on  Communications  Law 
(approx.  1987-1989);  Chair,  Sub-committee  on  the  Environment, 
Section  on  Individual  Rights  and  Responsibilities  (approx.  1983- 

-  3  - 


235 


1984);  Member,  ABA  Section  on  Individual  Rights  (1970's-present) , 
Section  on  Natural  Resources  (1980's-present) ,  Section  on 
Administrative  Law  (1980's-present) . 

District  of  Columbia  Judicial  Selection  Commission  (1977- 
1978)  . 

Member,  District  of  Columbia  Federal  Courts  Committee  on 
Gender  Bias  (1993-1994). 

Member,  Massachusetts  Bar  since  December  1969. 

D.C.  Bar  Foundation  Advisory  Committee  (1992-present) . 

10.  Other  Memberships;   List  all  organizations  to  which  you 
belong  that  are  active  in  lobbying  before  public  bodies.   Please 
list  all  other  organizations  to  which  you  belong. 

Organizations  that  lobby:   American  Rivers;  American  Civil 
Liberties  Union,  American  Civil  Liberties  Union  of  the  National 
Capital  Area,  Women's  Legal  Defense  Fund,  National  Women's  Law 
Center,  Sierra  Club,  Wilderness  Society,  American  Bar 
Association. 

Other  organizations:   Washington  Council  of  Lawyers, 
Washington  Area  Lawyers  for  the  Arts,  American  Arbitration 
Association  National  Panel  of  Arbitrators,  Fellows  of  the 
American  Bar  Foundation,  Executive  Women  in  Government,  Women's 
Council  on  Energy  &  the  Environment,  WAMU  Community  Advisory 
Board,  WETA  (money  contribution  only) ,  Land  and  Water 
Conservation  Fund. 

Upon  confirmation,  I  will  resign  from  organizations  that 
lobby. 

11.  Court  Admission:   List  all  courts  in  which  you  have  been 
admitted  to  practice,  with  dates  of  admission  and  lapses  if  any 
such  memberships  lapsed.   Please  explain  the  reason  for  any  lapse 
of  membership.   Give  the  same  information  for  administrative 
bodies  which  require  special  admission  to  practice. 

a.    Court  Admissions: 

United  States  District  Court  for  the  District  of 
Columbia,  1971. 

District  of  Columbia  Court  of  Appeals  (also  covers 
Superior  Court  for  District  of  Columbia) (year  unknown;  at  some 
time  around  1980,  admittants  to  U.S.  District  Court  for  District 
of  Columbia  were  automatically  admitted  to  this  Court) . 


4  - 


236 


Court  of  Appeals  for  District  of  Columbia  Circuit  (year 
unknown) . 

Court  of  Appeals  for  Tenth  Circuit  (approx.  1983). 

Court  of  Federal  Claims  (formerly  Court  of  Claims)  (approx. 
1979)  . 

Supreme  Court  of  United  States  (1973). 

b.    Bar  Admissions: 

District  of  Columbia,  June  1971. 

Massachusetts,  December  1969. 

12.   Published  Writings:   List  the  titles,  publishers,  and  dates 
of  books  articles,  reports,  or  other  published  material  you  have 
written  or  edited.   Please  supply  one  copy  of  all  published 
material  not  readily  available  to  the  Committee.   Also,  please 
supply  a  copy  of  all  speeches  by  you  on  issues  involving 
constitutional  law  or  legal  policy.   If  there  were  press  reports 
about  the  speech,  and  they  are  readily  available  to  you,  please 
supply  them. 

a.  Articles  (2  copies  attached  in  Binders  at  Tab  1) . 

'The  Progeny  of  Geduldia  v.  Aiello:   Can  Employers  Really 
Assume  Pregnancy  is  Unrelated  to  Sex?,"  1  Employee  Relations  Law 
Journal  41  (1975) . 

"Overcoming  Segregation  and  Discrimination",  Title  IX  and 
Other  Laws  Governing  Sex  Discrimination  in  Education.  Editors 
Charles  D.  Moody,  Sr.  and  Charles  B.  Vergon,  Program  for 
Educational  Opportunity,  The  University  of  Michigan  (1977). 

"The  FCC,  the  Congress  and  Indecency  on  the  Air," 
Communications  Lawyer,  Winter  1990  (with  Timothy  B.  Dyk) . 

"Political  Booknotes,"  (Unequal  Protection:   Women, 
Children,  and  the  Elderly  in  Court),  The  Washington  Monthly,  May 
1991. 

"Legal  Issues  Regarding  Sex  Bias  in  the  Selection  and  Use  of 
Career  Interest  Inventories,"  Sex-Fair  Interest  Measurement: 
Research  and  Implications.  The  National  Institute  of  Education, 
U.S.  Department  of  health,  Education  and  Welfare. 


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237 


b.  Speeches  (2  copies  attached  in  Binders  at  Tab  2)  and 
Lectures  (2  copies  attached  in  Binders  at  Tab  3) . 

I  have  attached  speeches  which  I  have  in  writing.   I  have 
also  attached  outlines  of  course  lectures.   I  have  given  a  number 
of  "remarks*  for  which  I  do  not  have  written  records  or 
materials. 

13.  Health:   What  is  the  present  state  of  your  health?   List  the 
date  of  your  last  physical  examination. 

Present  state  of  health  is  excellent.   Last  physical 
examination:   March  1993. 

14.  Public  Office:   State  (chronologically)  any  public  offices 
you  have  held,  other  than  judicial  offices,  including  the  terms 
of  service  and  whether  such  positions  were  elected  or  appointed. 
State  (chronologically)  any  unsuccessful  candidacies  for  elective 
public  office. 

None. 

15.  Legal  Career: 

a.  Describe  chronologically  your  law  practice  and  experience 
after  graduation  from  law  school  including: 

1.  whether  you  served  as  clerk  to  a  judge,  and  if  so, 
the  name  of  the  judge,  the  court,  and  the  dates  of  the  period  you 
were  a  clerk; 

2.  whether  you  practiced  alone,  and  if  so,  the 
addresses  and  dates; 

3.  the  dates,  names  and  addresses  of  law  firms  or 
offices,  companies  or  governmental  agencies  with  which  you  have 
been  connected,  and  the  nature  of  your  connection  with  each; 

b.  1.  What  has  been  the  general  character  of  your  law 
practice,  dividing  it  into  periods  with  dates  if  its  character 
has  changed  over  the  years? 

2.  Describe  your  typical  former  clients,  and  mention 
the  areas,  if  any,  in  which  you  have  specialized. 

c.  1.  Did  you  appear  in  court  freguently,  occasionally,  or 
not  at  all?   If  the  freguency  of  your  appearances  in  court 
varied,  describe  each  such  variance,  giving  dates. 

2.  What  percentage  of  these  appearances  was  in: 

(a)  federal  courts; 

(b)  state  courts  of  record; 

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238 


(c)  other  courts. 

3.  What  percentage  of  your  litigation  was: 

(a)  civil; 

(b)  criminal. 

4 .  State  the  number  of  cases  in  courts  of  record  you 
tried  to  verdict  or  judgment  (rather  than  settled) ,  indicating 
whether  you  were  sole  counsel,  chief  counsel,  or  associate 
counsel. 

5.  What  percentage  of  these  trials  was: 

(a)  jury; 

(b)  non-jury. 

Answer: 

a. 

1.  June  1970  -  July  1971:   Court  Law  Clerk,  District  of 
Columbia  Circuit,  3rd  and  Constitution  Avenue,  N.W.,  Washington, 
D.C.   20001.   I  was  a  motions  law  clerk,  working  for  all  the 
judges  on  the  Court  on  motions  matters.   The  judges  of  the 
District  of  Columbia  Circuit  at  that  time  were:   Judge  Bazelon, 
Judge  Wright,  Judge  Spottwood  Robinson,  Judge  Leventhal,  Judge 
McGowan,  Judge  Tamm,  Judge  Robb,  Judge  McKinnon,  and  Judge 
Wilkey.   Senior  Judge  Fahy  also  supervised  the  Court  Law  Clerks. 

2.  I  have  not  practiced  law  alone. 

3.  (a)   1969-1970:   Staff  lawyer  as  a  Reginald  Heber  Smith 
Fellow,  Boston  Legal  Assistance  Project,  80  State  Street,  Boston, 
Massachusetts.   Worked  as  a  staff  attorney  in  an  office  providing 
legal  services  to  the  poor.  I  handled  welfare  and  housing  test 
cases.   My  clients  were  poor  individuals  and  organizations  who 
represented  the  poor. 

(b)  1971-1974:   Associate,  Leva,  Hawes,  Symington, 
Martin  &  Oppenheimer,  815  Connecticut  Avenue,  N.W.,  Washington, 
D.C.   20006  (this  law  firm  no  longer  exists;  some  of  its  members 
are  now  lawyers  at  Swidler  &  Berlin  in  Washington,  D.C).   I 
worked  on  litigation  and  federal  administrative  agency  practice 
matters.  Clients  were  generally  business  and  non-profit 
corporations. 

(c)  1974-1978:   Lawyer,  Center  for  Law  and  Social  Policy 
Women's  Rights  Project,  1751  N  Street,  N.W.,  Washington,  D.C, 
20036  (the  Project  was  the  predecessor  to  the  National  Women's 
Law  Center,  1616  P  Street,  N.W.,  Washington,  D.C).   At  this 
public  interest  law  firm,  1  handled  litigation,  administrative 
agency  matters,  and  coordinated  with  a  number  of  other 

-  7  - 


239 


organizations  to  address  the  interests  of  women,  particularly  in 
the  areas  of  education,  health,  and  insurance.   Clients  were 
women's  groups  and  individual  women. 

(d)  1978-1984:   Chief,  General  Litigation  Section  (1978- 
1981)  and  Special  Litigation  Counsel  (1981-1984),  Land  and 
Natural  Resources  Division  (now  Environment  and  Natural  Resources 
Division),  U.S.  Department  of  Justice,  10th  and  Constitution 
Avenue,  N.W. ,  Washington,  D.C.   20530.   As  Chief  of  the  General 
Litigation  Section,  I  was  responsible-  for  managing  the  Section 
and  supervising  the  Section's  handling  of  approximately  2000 
cases  at  one  time  arising  under  over  70  federal  statutes, 
including  cases  under  the  Surface  Mining  Act,  National 
Environmental  Policy  Act,  Federal  Land  Policy  Management  Act, 
Alaska  National  Interest  Lands  Conservation  Act  and  water 
adjudications,  takings  cases,  and  mining  and  mineral  leasing 
cases.   As  Special  Litigation  Counsel,  I  handled  complex 
litigation  on  behalf  of  the  United  States  and  its  agencies, 
including  a  major  Superfund  case  and  a  takings  case  in  which 
people  from  the  Marshall  Islands  sought  compensation  for  loss  of 
land  arising  from  nuclear  testing  in  the  1940 's  and  1950's.  Sole 
client  was  the  United  States  (through  its  myriad  federal 
agencies) ,  and  I  handled  or  supervised  litigation  on  behalf  of 
almost  every  federal  agency. 

(e)  1984-1989:   General  Counsel,  National  Public  Radio, 
2025  M  Street,  N.W.  Washington,  D.C.   20036.   As  General  Counsel 
for  National  Public  Radio,  an  organization  with  350  member 
stations  and  approximately  3  50  employees,  I  handled  a  range  of 
matters,  including  employment,  copyright,  trademark,  corporate, 
non-profit  tax,  libel  issues,  insurance  and  general  management 
issues,  presentation  of  member  station  interests  at  the  FCC,  and 
Copyright  Royalty  Tribunal  matters.   I  also  served  as  Secretary 
to  the  Corporation  and  as  parliamentarian  at  Board  and  Membership 
meetings.  Client  was  National  Public  Radio,  a  non-profit 
corporation  and  membership  organization  that  produces  and 
distributes  radio  programming,  and  represents  the  interests  of 
member  stations. 

(f)  1986-present:   Adjunct  Professor  of  Law,  Georgetown 
University  Law  Center,  600  New  Jersey  Avenue,  N.W.,  Washington, 
D.C.   20001.   I  have  co-taught  introductory  environmental  law  one 
semester  a  year  for  all  but  one  of  these  years.  My  co-teacher  is 
Nancy  Firestone,  a  judge  at  the  Environmental  Appeals  Board, 
Environmental  Protection  Agency,  605  14th  Street,  N.W., 
Washington,  D.C. 

(g)  1989-1993:   Partner,  Nussbaum  &  Wald,  1  Thomas 
Circle,  N.W. ,  Washington,  D.C.   2005.   I  handled  a  major 
insurance  coverage  lawsuit  on  behalf  of  Certain  Underwriters  in 
the  London  Market  (Lloyds  of  London) ,  and  other  matters  on  behalf 
of  individuals  and  business  corporations,  including  counseling 

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240 


related  to  employment  issues.  I  also  handled  a  mayor  lawsuit  in 
which  a  chemical  company  sought  insurance  coverage  for  hazardous 
waste  clean-ups. 

(h)   July  1993  -  present:   Special  Assistant  to  the 
Attorney  General  (July-August) ,  Deputy  Assistant  Attorney  General 
(August-September)  and  Acting  Assistant  Attorney  General 
(September  27  -present) ,  Environment  and  Natural  Resources 
Division,  U.S.  Department  of  Justice,  10th  Street  and 
Constitution  Avenue,  N.W.,  Washington,  D.C.   20530.  I  have 
supervised  and  managed  the  work  of  the  Division  on  behalf  of 
federal  agencies.   The  Division's  work  includes  cases  on 
pollution,  natural  resources  and  public  lands,  and  Indians. 

b. 

1.  and  2.:  General  character  of  law  practice  and  typical 
clients: 

1969-1970:   Legal  services  practice;  I  litigated  test 
cases  on  behalf  of  poor  clients. 

1971-1974  and  1989-1993:   Private  law  firm  commercial 
law  and  federal  agency  practice,  including  litigation  and 
counseling.   Clients  were  private  companies  with  either 
commercial  interests  or  interests  related  to  government  actions, 
and  individuals  with  employment  law-related  problems. 

1974-1977:   Public  interest  practice  related  to  women's 
issues,  particularly  in  the  areas  of  education,  health,  and 
insurance.   Clients  were  women's  organizations  and  individual 
women. 

1978-1984:   Practice  as  a  government  lawyer,  including 
work  as  section  supervisor.   Clients  were  United  States  and 
federal  agencies.   Practice  was  environmental  law  and  litigation. 

1984-1989:   Practice  as  general  counsel  to  non-profit 
organization.   General  counsel  work  was  wide-ranging,  including 
negotiation  and  work  on  contracts,  copyright,  employment, 
corporate  and  tax  law.   Client  was  National  Public  Radio,  a  non- 
profit membership  corporation. 

July  1993-present:   Practice  as  Deputy  Assistant 
Attorney  General,  then  as  Acting  Assistant  Attorney  General  in 
Environment  and  Natural  Resources  Division,  U.S.  Department  of 
Justice.   Practice  includes  management  and  supervision  of 
environmental  litigation  and  related  policy. 

I  have  specialized  in  environmental  law  and  administrative 
law,  but  have  practiced  in  a  number  of  additional  areas. 


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c. 

1.  During  all  periods  except  1984-1989,  I  appeared  in  court 
occasionally.   During  the  1984-1989  period,  when  I  was  at 
National  Public  Radio,  I  appeared  in  court  rarely. 

2.  During  all  periods  except  1989-1993,  my  appearances  have 
been  in  federal  court,  and  once  or  twice  in  Superior  Court  in  the 
District  of  Columbia.  During  the  period  1989-1993,  virtually  all 
of  my  court  appearances  were  in  state  court  in  Delaware. 

3.  With  the  exception  of  several  criminal  appeals  in  the 
1970 's,  virtually  all  of  my  litigation  experience  has  been  civil. 
Since  September,  1993,  I  have  supervised  environmental  criminal 
cases  in  addition  to  a  civil  docket. 

4.  None.   I  have  handled  preliminary  injunction  and 
temporary  restraining  order  matters. 

5.  Not  applicable. 

16.   Litigation:   Describe  the  ten  most  significant  litigated 
matters  which  you  personally  handled.  Give  the  citations,  if  the 
cases  were  reported,  and  the  docket  number  and  date  if 
unreported.   Give  a  capsule  summary  of  the  substance  of  each 
case.   Identify  the  party  or  parties  whom  you  represented; 
describe  in  detail  the  nature  of  your  participation  in  the 
litigation  and  the  final  disposition  of  the  case.   Also  state  as 
to  each  case: 

(a)  the  date  of  representation; 

(b)  the  name  of  the  court  and  the  name  of  the  judge  or 
judges  before  whom  the  case  was  litigated;  and 

(c)  the  individual  name,  addresses,  and  telephone  numbers  of 
co-counsel  and  of  principal  counsel  for  each  of  the  other 
parties. 

Answer. 

1.    United  States  v.  Olin.  and  related  cases,  Civ.  A.  No.  CV80- 
PT-5300-NE  (N.D.  Alabama,  Judge  Propst) .   For  two  years,  from 
1982  to  June  1984,  I  represented  the  United  States  (including  six 
federal  agencies)  in  this  major  Superfund  case.   Olin  Corporation 
had  operated  a  plant  in  Alabama  where  it  manufactured  DDT  from 
the  1940's  through  1971.   Downstream  from  the  plant  was  the 
community  of  Triana,  Alabama,  a  predominantly  African-American 
town  of  over  1000  residents.   DDT  from  the  plant  had  extensively 
contaminated  an  area  surrounding  the  plant  and  caused  health 
problems  for  the  residents  of  Triana,  as  documented  by  the 
Centers  for  Disease  Control.   The  area  adjoined  an  area  managed 
by  the  Tennessee  Valley  Authority,  was  near  a  military  base 
operated  by  the  U.S.  Army,  and  affected  a  wildlife  refuge  managed 
by  the  Fish  and  Wildlife  Service.   The  Environmental  Protection 

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242 


Agency  requested  that  the  Justice  Department  sue  the  State  of 
Alabama,  first  under  the  Clean  Water  Act,  and  later,  after  the 
Comprehensive  Environmental  Response,  Compensation  and  Liability 
Act  ("CERCLA")  was  enacted,  under  CERCLA  as  well,  to  obtain 
remediation  of  the  site  and  other  appropriate  relief. 
Eventually,  the  State  of  Alabama  and  the  United  States  filed 
separate  actions  against  Olin  to  remediate  the  site  and  the  cases 
were  consolidated.   During  the  time  I  worked  on  the  cases,  as  one 
of  two  primary  counsel  for  the  United  States,  the  cases  were 
assigned  to  Judge  Propst. 

In  addition  to  these  CERCLA  actions,  three  different  groups 
of  plaintiffs  brought  tort  actions  to  recover  for  damages  arising 
from  the  DDT  exposure.   These  groups  were  a  large  group  of 
residents  of  Triana,  and  two  smaller  groups  of  plaintiffs. 

In  the  case,  I  helped  craft  a  strategy  for  the  United 
States,  briefed  and  argued  motions,  reviewed  documents,  took  both 
fact  and  expert  witness  depositions,  and  defended  both  fact  and 
expert  witness  depositions.   I  also  worked  extensively  on 
settlement.   In  December  1982,  approximately  two  months  before 
trial,  Judge  Propst  arranged  for  all  parties,  and  where  possible 
some  of  their  principals,  to  attend  a  settlement  conference 
conducted  by  another  judge  of  his  Court.   That  day,  the  parties 
agreed  to  a  complex  settlement  in  principle,  subject  to  approval 
by  their  principals.   I  worked  to  have  the  settlement  approved  by 
the  affected  federal  agencies  and  spent  four  months  negotiating 
settlement  documents  with  our  clients  and  opposing  parties.   The 
settlement  included  provisions  for  developing  and  implementing  a 
remediation  plan,  for  health  monitoring,  and  for  payments  to  tort 
plaintiffs.   Reported  decisions  in  the  case  are:   1981  WL  14903, 
11  Envtl.  L.  Rep.  21,026  (N.D.  Ala.  Aug.  14,  1981)  and  606  F. 
Supp.  1201  (N.D.Ala.  1985)  (a  decision  denying  a  collateral  attack 
on  the  consent  decree;  this  decision  describes  the  history  of  the 
case) . 

Counsel  in  the  case,  with  current  addresses,  were: 

Co-counsel: 

Kenneth  Reich 

Day,  Berry  &  Howard 

260  Franklin  Street,  21st  floor 

Boston,  MA  02110 

617-345-4600 

David  Batson 

Environmental  Protection  Agency 

401  N  Street,  N.W. 

Washington,  D.C.   20460 

202-260-8173 


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243 


Elizabeth  Todd  Campbell 
U.S.  Magistrate 
140  U.S.  Courthouse 
1729  5th  Avenue  N 
Birmingham,  AL   35203 
205-731-0364 

Henry  Frohsin 

Berkowitz,  Lefkovitz,  Isom  &  Kushner 

1600  Southtrust  Tower 

Birmingham,  AL  35203 

205-328-0482 


Counsel  for  Olin: 


G.  Lee  Garrett 

Jones,  Day,  Reavis  &  Pogue 

303  Peachtree  Street,  N.E. 

Atlanta,  GA   30308-3242 

404-521-3939 

Trammell  Vickery 

Troutman  Sanders 

600  Peachtree  Street,  N.E. 

Atlanta,  GA   30308-2216 

404-885-3000 

Stuart  Roth 
Olin  Corporation 
120  Long  Ridge  Road 
Stamford,  CT   06904 
203-356-2000 

Charles  Hatkins  (deceased) 
Myron  Sokolowski  (deceased) 

Counsel  for  Triana  Plaintiffs: 

Robert  Shields 

Doffemeyer,  Shields,  Canfield  &  Knowles 

13  55  Peachtree  Street,  N.E. 

Atlanta,  GA   30309 

404-881-8900 

(I  cannot  recollect  lead  counsel  for  the  other  two 
plaintiff  groups) . 

2.    In  re  Surface  Mining  Regulation  Litigation.  Civ.  A.  No.  78- 
162  (D.D.C,  Judge  Flannery) .   Reported  decisions  are  at  452  F. 
Supp.  327  (D.D.C.  1978)  and  456  F.  Supp.  1301  (D.D.C.  1978). 
These  decisions  were  affirmed  in  part  and  reversed  in  part  at  627 
F.2d  1346  (D.C.  Cir.  1980). 

-  12  - 


244 


Congress  passed  the  Surface  Mining  Control  and  Reclamation 
Act  of  1977,  30  U.S.C.  1201  et.  seq.   The  statute  was  a  major 
effort  to  regulate  and  repair  the  serious  adverse  environmental 
consequences  of  strip  mining.   Because  of  the  need  for  prompt 
attention  to  the  serious  environmental  and  public  health 
problems,  the  statute  provided  that  the  Department  of  the 
Interior  was  to  promulgate  interim  regulations  immediately,  and 
then  eventually  to  issue  final  regulations.   The  Department  of 
Interior  issued  its  interim  regulations  in  early  1978.   Industry 
representatives  immediately  filed  22  lawsuits  challenging  the 
regulations  as  unlawful.  The  challenges  questioned  many  aspects 
of  the  regulations,  including  technical  provisions,  and  also 
challenged  the  constitutionality  of  aspects  of  the  regulatory 
scheme.   Environmental  groups  intervened  on  the  side  of  the 
government.   The  case  was  assigned  to  Judge  Flannery  in  the 
federal  District  Court  for  the  District  of  Columbia. 

As  Chief  of  the  General  Litigation  Section  in  the  Lands 
Division  at  the  Department  of  Justice,  I  was  one  of  the  principal 
lawyers  handling  this  case.   First,  in  response  to  extensive 
interrogatories  filed  by  the  challengers,  I  filed  what  I  believe 
was  the  first  motion  to  limit  review  to  the  administrative  record 
(such  motions  are  new  common  in  administrative  practice) .   The 
success  of  that  motion  enabled  us  to  focus  on  briefing  extensive 
summary  judgment  motions  on  specific  challenges  to  myriad 
provisions  of  the  interim  regulations.   As  Chief  of  the  Section, 
I  also  determined  that  the  government  would  meet  the  deadlines  in 
an  expedited  briefing  schedule.   As  one  of  several  lead  counsel 
on  the  case,  I  organized  the  group  of  lawyers  at  the  Department 
of  Justice  and  the  Department  of  the  Interior  who  worked  on  the 
case,  edited  drafts  of  briefs,  and  worked  with  lawyers  and 
policy-makers  from  the  Department  of  the  Interior  on  the 
government's  position  in  the  briefs.   I  argued  portions  of  the 
case,  which  was  presented  to  the  Court  in  two  phases.   The 
government  prevailed  on  most  of  the  issues  presented  to  the  trial 
judge  and,  thereby,  we  were  successful  in  upholding  most  of  the 
new  regulatory  program.   These  victories  were  significant  in 
establishing  the  agency's  authority  under  this  important 
environmental  program. 

Because  of  the  large  number  of  cases,  there  were  numerous 
counsel.   To  the  best  of  my  recollection,  leading  counsel  in  the 
case,  with  current  addresses,  were: 

Co-counsel: 

Alfred  Ghiorzi 

Environment  and  Natural  Resources  Division 

U.S.  Department  of  Justice 

10th  Street  &  Constitution  Avenue,  N.W. 

Washington,  D.C.   20530 

202-272-6959 

-  13  - 


245 


David  Cannon 

PPG  Industries,  Inc. 

1  PPG  Place 

Law  Department 

40  South 

Pittsburgh,  PA   15272 

412-434-3131 

Carol  Lynn  Green 

Bryan ,  Cave 

700  13th  Street,  N.W. 

Washington,  D.C.   20005-3960 

202-508-6000 

Michael  McCord 

Environmental  Defense  Section 

Environment  and  Natural  Resources  Division 

U.S.  Department  of  Justice 

10th  Street  and  Constitution  Avenue,  N.W. 

Washington,  D.C.   20530 

202-514-2219 

Lead  opposing  counsel: 

Robert  Sayler 

Covington  &  Burling 

1201  Pennsylvania  Avenue,  N.W. 

Washington,  D.C.   20044 

202-662-6000 

Warner  Gardner 

Michael  Greenberger 

Shea  &  Gardner 

1800  Massachusetts  Avenue,  N.W. 

Washington,  D.C.   20036 

202-828-2000 

John  Macleod 

Crowe 11  &  Moring 

1001  Pennsylvania  Avenue,  N.W. 

Washington,  D.C.   1004-2595 

202-624-2500 

Counsel  for  intervenor  environmental  groups: 

Thomas  Galloway 
1835  K  Street,  N.W. 
Washington,  D.C.   20006 
202-833-9084 


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246 


Terence  Thatcher 
Deputy  City  Attorney 
Portland,  Oregon 
503-823-4047 

3.   National  Organization  for  Reform  of  Marijuana  Laws  (NORML)  v. 
Department  of  State.  Civ.  A.  No.  78-0428  (reported  decision  at 
452  F.  Supp.  1226  (D.D.C.  1978),  Judge  Waddy) .   NORML  sued  the 
Department  of  State  to  seek  a  declaratory  judgment  that  the 
Department  and  other  agencies  must  prepare  an  environmental 
impact  statement  under  the  National  Environmental  Policy  Act 
("NEPA")  before  spraying  herbicide  on  marijuana  in  Mexico.   This 
case  raised  the  significant  issue  of  whether  NEPA  applies  to 
actions  of  the  United  States  which  it  takes  abroad  when  the 
impact  occurs  in  the  United  States  or  abroad.   The  issue  was,  and 
continues  to  be,  one  of  interest  throughout  the  government.   I 
worked  with  the  Department  of  State,  the  Council  on  Environmental 
Quality,  and  other  federal  agencies  to  assure  that  the 
government's  interests  were  protected.   The  Department  of  State 
undertook  an  environmental  review,  and  based  on  that  undertaking, 
the  Court  determined  that  the  spraying  could  go  forward.   The 
Court  did  not  have  to  reach  the  guest ion  of  whether  a  full 
Environmental  Impact  Statement  was  required. 

Counsel  in  the  case,  with  current  addresses,  were: 


Co-counsel: 


Irwin  Schroeder 

Federal  Highway  Administration 

Clinton  Avenue  and  North  Pearl  Street 

Albany,  NY  12207 

518-471-6476 

Lee  Marks  (formerly  at  the  Department  of 

State) 

Ginsburg,  Feldman,  &  Bress 

1250  Connecticut  Avenue,  N.W. 

Washington,  D.C.   20036 

202-637-9050 


Opposing  Counsel: 


Peter  Meyers 

(formerly  with  NORML 

1001  Connecticut  Avenue, 

Washington,  D.C.   20036 

202-483-5500 

current  address  unknown) 


N.W. 


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247 


4.  United  States  v.  Sterling  Patrick.  No.  72-1481,  494  F.2d  1150 
(D.C.  Cir.  1974)  (Judges  Bazelon,  Wisdom,  and  Richey) .   Defendant 
stabbed  his  foster  mother  to  death  in  her  home.   He  was  taken  to 
the  police  station  for  questioning  and  stated  that  he  had  killed 
her,  but  did  not  know  how  it  happened.   At  trial,  the  defense 
contended  that  as  a  result  of  taking  LSD  on  the  day  of  the 
murder,  the  defendant  lacked  the  requisite  intent  for  first- 
degree  murder.   The  jury  was  instructed  on  the  insanity  defense, 
and  after  deliberations  asked  the  Court  whether  they  could 
recommend  psychiatric  treatment  with  a  finding  of  second-degree 
murder.   The  District  Court  Judge  instructed  the  jury  that  it 
could  recommend  such  treatment.   The  defendant  was  convicted  of 
second-degree  murder  for  killing  his  step-mother. 

I  was  one  of  the  court-appointed  counsel  on  appeal.   I 
developed  the  theories  and  wrote  the  brief  on  appeal  (the  appeal 
was  argued  by  a  partner  in  my  law  firm  who  was  originally 
appointed  by  the  Court) .   The  Court  of  Appeals  reversed  the 
conviction  on  the  ground  that  it  was  improper  for  the  trial  judge 
to  instruct  the  jury  that  it  could  recommend  psychiatric 
treatment  if  it  returned  a  guilty  verdict  in  a  case  where  the 
sole  issue  was  whether  the  defendant  was  criminally  responsible. 

Counsel  in  the  case,  with  current  addresses,  were: 

Co-counsel: 

Marx  Leva 

Robins,  Kaplan,  Miller  &  Ciresi 

1801  K  Street,  N.W. 

Suite  1200 

Washington,  D.C.   20036 

202-775-0725 

Opposing  counsel: 

Julius  Johnson 

Department  of  Labor 

3rd  Street  and  Constitution  Avenue,  N.W. 

Washington,  D.C.   20210 

202-633-0395 

Judge  John  Terry  (Supervisor  in  U.S. 

Attorneys'  Office) 

District  of  Columbia  Court  of  Appeals 

500  Indiana  Avenue,  N.W. 

Washington,  D.C. 

202-879-2780 

5.  Women's  Equity  Action  League  v.  Mathews.  Civ.  A.  No.  74-1720. 
In  this  case,  on  behalf  of  a  number  of  individual  women  and  girls 
and  women's  groups,  we  sought  an  order  compelling  the  Secretary 

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248 


of  Health,  Education  and  Welfare  ("HEW")  to  enforce  Title  IX  of 
the  Civil  Rights  Act  of  1970.   That  law  requires  schools  that 
receive  federal  funding  not  to  discriminate  on  the  basis  of  sex. 
We  also  sought  to  have  HEW  and  the  Department  of  Labor  enforce 
Executive  Order  11246  (amended  by  Executive  Order   11375)  for 
colleges  and  universities  with  regard  to  sex  discrimination. 
These  Orders  require  government  agencies  to  require  affirmative 
action  by  government  contractors.   We  filed  the  case  in  late 
1974,  and,  as  one  of  two  primary  co-counsel,  I  worked  on  the  case 
until  January  1978,  when  I  left  the  Center  for  Law  and  Social 
Policy  to  work  for  the  Department  of  Justice.   The  case  was 
litigated  until  1990. 

Originally  the  case  was  before  Judge  Waddy,  of  the  United 
States  District  Court  for  the  District  of  Columbia.   Thereafter, 
the  WEAL  plaintiffs  intervened  in  a  related  case,  Adams  v. 
Richardson,  pending  before  Judge  Pratt  and,  when  Judge  Waddy 
died,  WEAL  was  transferred  to  Judge  Pratt.   The  Adams  plaintiffs 
sought  to  have  HEW  enforce  Title  VI  of  the  Civil  Rights  Act  of 
1970  with  regard  to  race  discrimination  in  schools  and  colleges 
in  17  border  and  Southern  states. 

The  WEAL  case  arose  because  HEW  did  not  handle  promptly 
complaints  that  women  and  girls  filed  with  HEW  alleging  that 
their  high  schools  and  colleges,  which  received  federal  funds, 
discriminated  against  them  on  the  basis  of  sex.   The  WEAL 
plaintiffs  alleged  that  women  were  not  promoted  or  were  paid  less 
than  men  at  the  schools.   In  addition,  HEW  did  not  undertake 
affirmative  compliance  reviews  to  find  such  discrimination, 
whether  or  not  complaints  were  filed.   Similarly,  the  Department 
of  Labor  did  not  enforce  analogous  provisions  of  the  Executive 
Orders  against  non-complying  colleges  and  universities  that 
received  government  contracts.   The  suit  sought  an  order 
requiring  HEW  and  the  Department  of  Labor  to  handle  complaints 
promptly  and  to  conduct  compliance  reviews.   The  case  was  to  some 
extent  modeled  on  Adams  v.  Richardson. 

The  WEAL  case  proceeded  slowly  through  the  discovery  phase. 
During  the  course  of  discovery  in  WEAL,  HEW  sought  modification 
of  an  order  requiring  it  to  process  complaints  and  conduct 
compliance  reviews  for  race  discrimination  that  resulted  after 
rulings  in  Adams  v.  Richardson.   HEW  contended  before  Judge  Pratt 
in  Adams  that  his  order  requiring  enforcement  of  the  race 
discrimination  law  left  HEW  with  no  resources  to  address  sex 
discrimination  complaints  or  national  origin  discrimination 
complaints.   We  sought  to  intervene  in  Adams  to  protect  the 
interests  of  our  clients,  but  Judge  Pratt  denied  our  motion. 
Because  we  were  concerned  about  the  effect  of  a  ruling  on 
remedies  for  our  clients,  and  because  we  wanted  to  work  with  the 
Adams  plaintiffs  to  obtain  a  remedy  that  protected  the  rights  of 
all  affected  groups,  I  sought  and  obtained  in  the  Court  of 
Appeals  summary  reversal  of  Judge  Pratt's  denial  of  intervention. 

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249 


Adams  v.  Mathews.  536  F.2d  417  (D.C.  Cir.  1976)  (Judges  Wright, 
Leventhal,  and  Robinson).   The  only  other  reported  decision 
during  the  time  I  worked  on  the  case  is  Adams  v.  Califano.  430  F. 
Supp.  118  (D.D.C.  1977) (granting  further  relief  regarding  HEW 
enforcement  to  the  Adams  plaintiffs) . 

Subsequently,  HEW  and,  for  the  WEAL  plaintiffs,  the 
Department  of  Labor,  sought  to  negotiate  a  consent  decree  with 
the  Adams  and  the  WEAL  plaintiffs,  as  well  as  with  plaintiffs 
representing  the  Mexican  American  Legal  Defense  and  Education 
Fund  ("MALDEF")  .   Of  significance,  all  the  groups  and  interests 
worked  together  to  assure  the  effective  enforcement  of  the  civil 
rights  laws.   I  worked  extensively  on  the  consent  decree,  which 
was  agreed  to  shortly  before  I  left  the  case.  The  case  has  a 
substantial  subsequent  history  of  reported  decisions. 

Counsel  in  the  case,  with  current  addresses,  were: 

Co-counsel: 

Marcia  Greenberger 
National  Women's  Law  Center 
1616  P  Street,  N.W. 
Washington,  D.C.   20036 
202-328-5160 

Counsel  for  Adams  plaintiffs: 

Joseph  Rauh  (deceased) 

Elliott  Lichtman 

Lichtman,  Trister,  Singer  &  Ross 

1666  Connecticut  Avenue,  N.W. 

Washington,  D.C.   20009 

202-328-1666 

Counsel  for  MALDEF  plaintiffs: 

Stuart  Land 

Arnold  &  Porter 

1200  New  Hampshire  Avenue,  N.W. 

Washington,  D.C.   20036-6885 

202-872-6720 


Opposing  Counsel: 


John  Boese 

1001  Pennsylvania  Avenue,  N.W. 

Washington,  D.C.   20004 

202-639-7220 


18  - 


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David  Anderson 

Civil  Division 

U.S.  Department  of  Justice 

10th  Street  and  Constitution  Avenue,  N.W. 

Washington,  D.C.   20530 

202-514-3354 

6.    Monsanto  v.  Aetna.  No.  C.A.  88C-JA-118  (Superior  Court  for 
New  Castle  County  Delaware) .   The  case  was  filed  in  1988;  I  began 
working  on  it  in  October,  1989.   A  major  chemical  company  had 
engaged  in  remediation  of  hazardous  wastes  under  Superfund  and 
other  hazardous  waste  laws.   Monsanto  sought  insurance  coverage 
for  these  remedial  activities  at  80  sites  throughout  the  country. 
Because  the  activity  that  caused  the  pollution  that  was  being 
remediated  began  in  the  1940's,  Monsanto  sued  all  of  the 
insurance  companies  that  had  sold  it  comprehensive  general 
liability  policies  and  pollution  coverage  policies  from  the 
1940's  to  the  1980's  (approximately  38  entities).   Monsanto 
sought  a  declaratory  judgment  that  it  was  entitled  to  coverage. 
That  judgment  could  result  in  hundreds  of  millions  of  dollars  in 
payments  from  the  insurance  carriers  to  Monsanto. 

I  was  one  of  several  lawyers,  both  from  my  law  firm  in 
Washington  and  other  law  firms  in  Delaware  and  Chicago, 
representing  Certain  Underwriters  at  Lloyds,  London  and  Certain 
Companies  in  the  London  Market  ("Lloyds").   I  worked  on  the 
litigation  for  a  substantial  amount  of  my  time  until  July,  1993, 
when  I  came  to  work  at  the  Department  of  Justice  (the  case  is 
still  pending) .   During  the  time  I  worked  on  the  case,  a  number 
of  rulings  on  discovery  and  related  matters  were  issued  by  the 
Court.   After  I  left  the  case,  during  December  1993,  the  Court 
issued  a  number  of  substantial  summary  judgment  decisions.   Those 
decisions  had  the  effect  of  deciding  a  number  of  claims  against  a 
number  of  the  parties.  Trial  is  still  required  for  a  final 
outcome  to  be  determined,  but  the  trial  date  of  February,  1994 
has  been  deferred. 

During  the  years  I  worked  on  the  case,  I  worked  extensively 
on  discovery  and  issues  relating  to  discovery,  reviewed 
documents,  wrote  motions,  worked  extensively  on  challenges  to 
plaintiff's  privilege  logs,  and  took  a  number  of  depositions  of 
fact  witnesses.   With  lawyers  representing  several  other  major 
insurers  in  the  case,  I  played  a  major  coordinator  role  among 
defense  counsel.  I  argued  a  number  of  motions  before  the  Special 
Discovery  Master,  Harvey  Rubenstein,  and  several  motions  before 
judges  in  the  case.   During  the  years  I  worked  on  the  case,  it 
was  sequentially  assigned  to  the  following  three  judges:   Judge 
'artin,  Judge  Poppitti,  and  Judge  Ridgley.   A  list  of  reported 
decisions  in  the  case  is  attached.   (See  Attachment  A.)   While 
counsel  for  various  parties  changed  through  the  course  of  the 
litigation,  attached  is  a  list  of  London  co-counsel  and  of 

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principal  counsel  for  other  parties  as  of  the  date  I  left  the 
case  in  July  1993.  (See   Attachment  B.) 

7.   Juda  v.  United  States  and  related  cases  (Marshall  Islands 
cases)  (United  States  Court  of  Claims) .   In  these  major  takings 
cases,  citizens  of  certain  Marshall  Islands  sought  compensation 
for  the  United  States  government's  alleged  "taking*  of  their 
lands  because  of  its  nuclear  testing  in  the  1940's  and  1950's. 
At  the  time  the  cases  were  brought  in  1981,  the  United  States  was 
negotiating  a  new  political  status  for  the  Marshall  Islands, 
which  were  under  a  United  Nations  trusteeship  administered  by  the 
United  States.   It  was  anticipated  that  the  resulting  status,  a 
Compact  of  Free  Association,  would  provide  for  settlement  of 
claims,  including  these  "takings"  claims,  by  providing 
significant  compensation.   The  cases  raised  a  series  of  difficult 
questions,  including  the  effect  of  a  proposed  Compact  of  Free 
Association  on  the  claims.   Under  a  doctrine  called  "espousal," 
we  argued  that  the  new  government  could  assume  and  extinguish  the 
claims  of  its  citizens. 

On  behalf  of  the  United  States,  I  began  work  on  these  three 
similar  cases  in  1982,  and  worked  on  them  until  I  left  the 
Department  of  Justice  in  1984.   As  lead  counsel  during  the  course 
of  my  work  on  these  cases,  I  formulated  the  government's 
position,  worked  with  a  number  of  agencies,  defended  depositions, 
and  wrote  a  motion  to  dismiss.   The  motion  to  dismiss  was 
premised  on  the  grounds  that:  the  statute  of  limitations  had  run; 
Tucker  Act  jurisdiction  did  not  extend  to  these  cases;  the 
"Sovereign  Act"  defense  barred  implied  contract  claims;  the 
implied  contract  claims  were  precluded;  and  Marshall  Islanders 
could  not  invoke  the  just  compensation  clause  of  the  Fifth 
Amendment.   I  worked  closely  with  co-counsel  and  with  lawyers 
from  the  affected  agencies.   I  argued  two  of  the  three  related 
motions  to  dismiss  before  Judge  Harkins  of  the  then  Court  of 
Claims.   We  also  sought  to  defer  ruling  on  the  cases  until  the 
Compact  of  Free  Association  was  concluded. 

By  a  series  of  three  opinions,  Judge  Harkins  denied  most 
parts  of  the  motions  to  dismiss.  These  denials  are  reported  at: 
Juda  v.  United  States.  6  CI.  Ct.  441  (1984);  Peter  v.  United 
States.  6  CI.  Ct.  768  (1984);  and  Nitol  v.  United  States.  7  C. 
Ct.  405  (1985).   Subsequently,  after  I  left  the  cases,  the  Court 
of  Claims  ruled  that  the  Compact  of  Free  Association  did  withdraw 
Tucker  Act  jurisdiction.   See  Juda  v.  United  States.  13  Ct.  CI. 
667  (1987);  Nitol  v.  United  States.  13  Ct.  CI.  690  (1987);  and 
Peter  v.  United  States.  13  Ct.  CI.  691  (1987).   These  decisions 
were  People  of  Enewetak  v.  United  States.  864  F.2d  134  (Fed.  Cir. 
1988),  cert,  denied.  491  U.S.  909  (1989). 


20  - 


252 


Counsel  in  the  case,  with  current  addresses,  were: 

Co-counsel  (I  worked  particularly  closely  with) : 

Wendy  Jacobs 
Foley,  Hoag  &  Eliot 
One  Post  Office  Square 
Boston,  MA   02109 
617-381-1390 


Opposing  counsel: 


Jonathan  Weisgall 

1300  19th  Street,  N.W. 

Suite  407 

Washington,  D.C.   20036 

202-828-1378 

David  Anderson 
369  Montezuma  #239 
Santa  Fe,  NM   87501 
505-989-3771 

William  Camusi  (deceased) 


8.    National  Food  Processors  Association  v.  Klutznick.  No.  81- 
1239  (D.C.  Cir.).   1  handled  this  case  on  appeal  from  a  decision 
of  the  United  States  District  Court  for  the  District  of  Columbia. 
The  case  arose  under  the  Fishery  Conservation  and  Management  Act 
of  1976,  a  statute  administered  by  the  National  Oceanic  and 
Atmospheric  Administration  (a  part  of  the  Department  of 
Commerce) .   Under  the  statute,  the  Secretary  issues  and  amends 
fishery  management  plans  for  particular  fisheries.   Here,  the 
Secretary  had  amended  a  plan  for  clam  and  quahog  fishing.   The 
plaintiff  trade  association  challenged  the  plan  on  the  ground 
that  reporting  requirements  in  the  original  plan,  not  the  part 
that  was  amended,  did  not  comply  with  the  law.   The  District 
Court  ruled  that  plaintiffs  were  barred  from  challenging  that 
portion  of  the  regulation  because  it  was  not  repromulgated  here, 
and  the  statutory  requirement  that  review  of  regulations  had  to 
be  filed  within  30  days  was  not  met  as  to  the  old  portion  of  the 
regulation.   507  F.  Supp.  76  (D.D.C.  1981). 

The  trade  association  appealed  to  the  D.C.  Circuit  in  1981. 
I  wrote  the  brief  and  argued  the  government's  position  as 
appellee.   The  question  was  one  of  administrative  law — if  an 
agency  promulgates  a  regulation  with  several  parts,  and  amended 
one  of  the  parts  several  years  later,  does  the  time  for  seeking 
review  run  again  as  to  the  part  that  is  not  repromulgated.   In  an 
unreported  decision,  the  Court  of  Appeals  affirmed.  (Judges 
Edwards,  Markey,  Mikva) . 

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253 


Counsel  in  the  case,  with  current  address,  was: 
Opposing  Counsel: 

Robert  Sayler 

Covington  &  Burling 

1201  Pennsylvania  Avenue,  N.W. 

Washington,  DC  20044-7566 

202-662-5382 

9.    Alaska  v.  Carter.  462  F.  Supp.  1155  (D.  Alaska  1978,  Judge 
Heydt) .  This  case  was  filed  in  the  United  States  District  Court 
for  the  District  of  Alaska.  Congress  Passed  the  Alaska  Native 
Claims  Settlement  Act  in  1971.   The  Act  authorized  the  Secretary 
of  the  Interior  to  withdraw  from  appropriation  millions  of  acres 
of  land  in  Alaska  needed  to  "protect  the  public  interest,*  (»d-2» 
lands)  and  up  to  80  million  acres  "suitable  for  addition  to  or 
creation  as"  units  of  National  Parks  and  other  protected  areas 
("d-1  withdrawals") .   Withdrawals  under  the  "public  interest" 
provision  expired  on  December  16,  1978.   Millions  of  acres  were 
withdrawn  under  these  authorities.   The  Secretary  sought 
legislation  to  protect  these  lands,  but  legislation  had  not 
passed  near  the  time  of  expiration  of  the  »d-2"  protection.  The 
Department  of  the  Interior  assembled  a  task  force  to  consider 
alternative  protection  for  the  lands  to  maintain  the  status  guo 
until  Congress  could  act,  and  prepared  a  supplemental 
Environmental  Impact  Statement  ("EIS") .   The  draft  supplemental 
statement  was  released  for  public  comment,  and  a  shortened 
comment  period  was  specified.   Thereafter,  the  Secretary 
determined  that  an  emergency  existed  and  withdrew  lands  under  the 
Federal  Land  Policy  and  Management  Act  ("FLPMA") .   The  State  of 
Alaska  filed  land  selections  on  41  million  acres. 

The  State  of  Alaska  sued  to  challenge  the  shortened  comment 
period,  and  sought  a  preliminary  injunction  against  the 
foreshortened  comment  period.   Since  at  least  some  of  the 
proposed  actions  to  maintain  the  lands  under  protected  status 
could  not  be  taken  to  protect  the  lands  until  the  comment  period 
closed,  and  without  the  shortened  period  closure  would  occur 
after  expiration  of  the  "d-2"  withdrawals,  the  suit  was 
significant  with  respect  to  the  protection  of  important  Alaska 
lands  that  the  Secretary  of  the  Interior  referred  to  as  the 
country's  "crown  jewels."  The  Court  determined  that  certain 
protection  undertaken,  including  those  undertaken  by  the 
President,  did  not  require  compliance  with  NEPA,  and  that  to 
construe  NEPA  otherwise  would  raise  constitutional  problems.   It 
also  held  that  an  emergency  withdrawal  under  FLPMA  does  not 
require  NEPA  compliance.   Finally,  the  Court  determined  that  the 
shortened  comment  period  for  the  supplemental  EIS  was  undertaken 
in  compliance  with  guidelines  of  the  Council  on  Environmental 
Quality,  and  was  therefore  a  responsible  exercise  of  discretion. 

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254 


The  Court  denied  the  State's  request  for  preliminary 
injunction.   Subsequently,  Congress  passed  the  Alaska  National 
Interest  Lands  Conservation  Act  ("ANILCA")  which  determined  which 
lands,  as  to  which  the  status  quo  had  been  maintained,  would 
become  national  protected  areas. 

I  acted  as  a  supervisor  on  this  case,  discussing  issues, 
briefing  and  oral  argument  with  the  lawyers  who  handled  the  case 
on  a  day-to-day  basis. 

Counsel  in  the  case,  with  current  addresses,  were: 

Counsel  for  the  Government: 

Steven  Herman 

Assistant  Administrator  for  Enforcement 

Environmental  Protection  Agency 

401  M  Street,  S.W. 

Washington,  D.C. 

202-260-5145 

Kathryn  Oberly 

Ernst  &  Young 

1200  19th  Street,  N.W. 

Washington,  D.C.   20036 

202-327-9871 

James  Moorman 

Cadwalader,  Wickersham  &  Taft 

13  3  3  New  Hampshire  Avenue,  N.W. 

Washington,  D.C.  20036 

202-862-2300 

Acting  Justice  Alexander  Bryner 

Court  of  Appeals  of  the  State  of  Alaska 

303  K  Street,  5th  Floor 

Anchorage,  AK  99501 

907-264-0751 


Opposing  Counsel: 


Thomas  Meachum 
(no  known  address) 


10.   No  Oilport  v.  Carter.  520  F.  Supp.  334  (W.D.  Wa.  1981,  Judge 
Belloni) .   As  Chief  of  the  General  Litigation  Section,  I  became 
involved  in  this  case  at  its  inception  in  approximately  1980 
because  of  the  importance  of  the  project  and  the  fact  that  the 
President  was  sued.   I  participated  in  discussions  about  strategy 
and  briefing,  and  made  one  court  appearance. 


23  - 


255 


In  this  case,  three  plaintiff  groups — environmental  groups, 
a  city  and  a  county,  and  Indian  tribes  in  the  State  of 
Washington — sued  President  Carter,  other  federal  officials,  and 
the  Northern  Tier  Pipeline  Company,  to  stop  construction  of  a 
proposed  northern  tier  pipeline,  which .would  carry  crude  oil 
across  the  northern  tier  states.   The  challenged  actions  were  the 
selection  by  President  Carter  of  a  route  for  the  pipeline,  and 
the  grant  by  the  Secretary  of  the  Interior  of  a  right-of-way 
permit  for  the  pipeline.   Challenges  were  filed  under  a  number  of 
statutes,  including  the  NEPA,  the  Public  Utilities  Regulatory 
Policies  Act,  and  the  Mineral  Leasing  Act.   In  a  lengthy  opinion, 
Judge  Belloni  ruled  in  favor  of  the  defendants  on  almost  all 
issues.   He  also  determined  that,  as  to  Indian  treaty  issues, 
genuine  issues  of  material  fact  required  a  trial. 

Counsel  in  the  case,  with  current  addresses,  were: 

Co-counsel: 

Andrew  Walch 

Environment  and  Natural  Resources  Division 

U.S.  Department  of  Justice 

Suite  501,  North  Tower 

999  18th  Street 

Denver,  CO   80202 

(303)  292-2320 

Nancy  Firestone 

Environmental  Protection  Agency 

401  M  Street,  S.W. 

Washington,  D.C. 

202-501-7109 

Counsel  for  Northern  Tier  Pipeline  Co.  defendant: 

Robert  Loeffler 

Morrison  &  Foerster 

2000  Pennsylvania  Avenue,  N.W. 

Washington,  D.C.   20006 

202-887-1500 

Counsel  for  No  Oilport  plaintiffs: 

Craig  Richie 

Doherty,  Doherty  &  Richie 

Port  Angeles,  WA 

(name  from  reported  decision,  I  do  not  recall 

counsel) 


-  24 


256 


Counsel  for  City  of  Port  Angeles  plaintiffs: 


Craig  Miller 

City  Attorney  for  Port  Angeles 

Port  Angeles,  WA 

(name  from  reported  decision,  I  do  not  recall 

counsel) 

Counsel  for  Indian  Tribe  plaintiffs: 

Russell  Busch 

Evergreen  Legal  Services, 

Native  American  Project 

Seattle,  WA 

(name  from  reported  decision,  I  do  not  recall 

counsel) 

Stephen  Quesenberry 

Skokomish  Tribal  Office 

She 1 ton,  WA 

(name  from  reported  decision,  I  do  not  recall 

counsel) 

Donald  Means 

Peter  Wilke 

Swinomish  Tribal  Community 

Bellevue,  WA 

(name  from  reported  decision,  I  do  not  recall 

counsel) 

Robert  Wilson-Hoss 

Sguaxin  Island  Tribe 

Shelton,  WA 

(name  from  reported  decision,  I  do  not  recall 

counsel) 

17.   Legal  Activities:   Describe  the  most  significant  legal 
activities  you  have  pursued,  including  significant  litigation 
which  did  not  progress  to  trial  or  legal  matters  that  did  not 
involve  litigation.   Describe  the  nature  of  your  participation. 
In  this  guestion,  please  omit  any  information  protected  by  the 
attorney-client  privilege  (unless  the  privilege  has  been  waived.) 

a.  Teaching.   Since  1986,  as  an  adjunct  professor  I  have 
taught  introductory  environmental  law  at  Georgetown  University 
Law  Center.   The  course,  which  I  co-teach  one  semester  a  year 
with  a  colleague,  covers  six  basic  statutes:  National 
Environmental  Policy  Act,  Clean  Water  Act,  Resource  Conservation 
and  Recovery  Act,  Superfund,  and  Toxic  Substances  Control  Act. 
We  use  lectures,  class  participation,  and  problems,  which  the 
students  work  on  together,  and  evaluate  and  discuss  during  class, 
to  convey  concepts  and  details  of  how  the  statutes  work  and  how 


-  25  - 


257 


Congress  and  federal  agencies  work  to  control  pollution.   We 
emphasize  student  participation  in  a  friendly  atmosphere.   The 
class  has  been  successful  in  introducing  a  large  number  of 
students,  many  of  whom  are  now  practitioners,  to  the  importance 
of  this  area  of  the  law  and  the  approaches  that  different 
statutes  take  to  the  problem  of  pollution. 

b.  Budget .   I  have  experience  in  developing  budgets  and 
assuring  that  an  organization  operates  within  budget.   As  a 
member  of  the  Board  of  Governors  of  the  District  of  Columbia  Bar, 
and  as  a  member  of  its  Budget  Committee,  I  worked  with  Bar  staff 
to  develop  and  evaluate  an  annual  budget,   I  also  assisted  in 
developing  budgets  at  the  American  Civil  Liberties  Union  ("ACLU") 
and  have  reviewed  and  approved  budgets  at  American  Rivers.   At 
National  Public  Radio,  senior  management,  including  the  General 
Counsel  were  involved  in  developing  annual  budgets,  having  them 
approved  and  adopted,  and  assuring  that  the  organization  worked 
within  the  budget.   As  National  Public  Radio's  General  Counsel,  I 
gained  experience  in  tracking  expenditures  and  readjusting 
budgets.   At  the  Department  of  Justice  I  have  also  had  a  role  in 
the  past  six  months  working  on  budgets  and  budget  forecasts  for 
upcoming  fiscal  years,  and  defending  the  Division's  budget  within 
the  Department  and  to  the  Office  of  Management  and  Budget. 

c.  Management  experience.   During  the  course  of  my  career,  I 
have  had  experience  managing  employees  and  organizations, 
caseloads,  and  cases.   Both  as  Chief  of  the  General  Litigation 
Section  in  the  Lands  Division  at  the  Department  of  Justice,  and 
as  General  Counsel  at  National  Public  Radio,  I  was  responsible 
for  managing  a  staff  (approximately  50  people  at  the  Justice 
Department  of  Justice,  and  six  people  at  National  Public  Radio), 
including  setting  priorities,  assuring  quality  of  work,  hiring, 
dealing  with  personnel  issues,  supervising  work,  establishing  a 
management  structure,  and  coordinating  with  other  units  within 
the  organizations  and  outside  of  the  organizations.   At  National 
Public  Radio  I  was  also  responsible  with  other  senior  managers 
for  management  of  the  entire  organization  and  its  representation 
of  3  50  member  stations. 

I  have  also  been  responsible  for  managing  caseloads, 
including  assuring  that  the  2000  cases  in  the  General  Litigation 
Section  were  tracked,  assigned,  handled  by  either  counsel  in 
Washington  or  in  United  States  Attorneys'  Offices,  and  presented 
in  a  manner  consistent  with  the  policy  of  the  affected  client 
agencies. 

Finally,  I  have  managed  complex  cases.   That  work  has 
included  taking  a  leading  role  on  a  case  steering  committee 
(Monsanto  v.  Aetna) ,  leading  a  team  that  handled  extensive 
briefing  and  argument  in  a  regulatory  case  fin  re  Surface  Mining 
Litigation) .  and  organizing  the  United  States'  case,  one  of 
several  cases  arising  from  the  same  incident  of  pollution  where 

-  26  - 


258 


the  other  cases  had  over  a  thousand  plaintiffs  and  where  I 
represented  six  government  agencies  (United  States  v.  Olin  and 
related  cases) . 

d.  Development  of  legal  theories.   Throughout  the  course  of 
my  career,  I  have  been  involved  in  the  development  of  legal 
theories  to  solve  problems  and  advocate  positions.   For  example, 
as  Special  Litigation  Counsel  at  the  Department  of  Justice,  I 
worked  on  two  major  cases  under  the  Super fund  law.   In  the 
process  of  working  on  these  cases,  it  became  evident  that  the 
government  could  develop  a  process  that  would  permit  agency 
determination  of  the  appropriate  remedial  action  for  hazardous 
waste  contamination  after  appropriate  opportunity  for  notice  and 
comment  by  affected  parties,  and  could  then  provide  for  review  of 
its  decisions  on  an  agency  record,  rather  than  de  novo  in  a 
court.   This  approach  would  save  both  time  and  money  in  the 
process  of  clean-up  of  the  nation's  hazardous  waste  sites.   This 
theory  became  the  basis  for  procedures  enacted  in  the  Superfund 
Amendments  and  Reauthorization  Act  of  1986,  and  continues  to 
provide  the  procedure  for  agency  decision  and  affected  entity 
review  under  the  law. 

e.  Negotiations.   I  have  had  extensive  experience 
negotiating  case  settlements,  commercial  contracts,  union 
contracts,  and  consent  decrees.   I  have  trained  as  a  mediator  and 
have  mediated  approximately  twelve  cases,  most  to  successful 
conclusion.   I  have  also  participated  in  a  negotiated  rulemaking 
for  Channel  6  Federal  Communications  Commission  ("FCC")  rules. 

At  National  Public  Radio,  and  on  behalf  of  its  350  member 
stations,  I  participated  extensively  in  a  negotiated  rulemaking 
that  resulted  in  a  proposed  rule,  eventually  adopted  by  the  FCC, 
that  resolved  a  longstanding  issue.   Stations  that  operate  at  low 
FM  frequencies  may,  at  those  frequencies,  cause  interference  to 
television  Channel  6  stations  that  operate  nearby.   Because  FM  88 
to  92  frequencies  are  reserved  for  public  radio,  National  Public 
Radio  stations  were  some  of  the  stations  that  the  Channel  6 
interests  were  concerned  about  restricting.   The  FCC  had  issued  a 
proposed  rule  to  balance  those  interests  that  was  not 
satisfactory  to  National  Public  Radio  member  stations.   On  behalf 
of  National  Public  Radio,  I  worked  with  in-house  engineers  to 
develop  a  grid  by  which  we  could  determine  which  restrictions 
were  more  acceptable  and  which  were  less  acceptable,  then 
participated  in  a  negotiated  rulemaking  with  Channel  6  interests 
to  develop  a  rule  that  balanced  the  restrictions  in  a  manner  more 
acceptable  to  National  Public  Radio  member  stations.   The 
negotiated  rule  was  finally  adopted  by  the  agency. 

f.  Ethics.   I  have  always  been  committed  to  the  highest 
ethical  standards  for  the  practice  of  law.   As  one  step  to 
further  those  ends,  I  served  as  vice-chair  of  a  Committee  to 
Review  the  Disciplinary  System  of  the  D.C.  Bar.   The  Committee 
conducted  extensive  interviews,  and  wrote  a  report  evaluating  the 

-  27  - 


259 


strengths  and  weaknesses  of  the  process  and  recommending  changes. 
A  number  of  the  changes  were  implemented. 

II.  Financial  Data  and  Conflict  of  Interest  ( Public) 

1.  List  sources,  amounts  and  dates  of  all  anticipated  receipts 
from  deferred  income  arrangements,  stock,  options,  uncompleted 
contracts  and  other  future  benefits  which  you  expect  to  derive 
from  previous  business  relationships,  professional  services,  form 
memberships,  former  employers,  clients,  or  customers.   Please 
describe  the  arrangements  you  have  made  to  be  compensated  in  the 
future  for  any  financial  or  business  interest. 

I  am  a  participant  in  a  TIAA/CREF  Pension  Plan  to  which 
National  Public  Radio  substantially  contributed  during  the  time 
of  my  employment  there.   I  expect  no  further  contributions  from 
National  Public  Radio.   In  addition,  I  have  an  IRA  plan  and  a  SEP 
plan.   I  have  been  the  sole  contributor  to  each  of  those  deferred 
income  plans,  and  expect  no  contributions  to  those  plans  from 
past  employers. 

2.  Explain  how  you  will  resolve  any  potential  conflict  of 
interest,  including  the  procedure  you  will  follow  in  determining 
these  areas  of  concern.   Identify  the  categories  of  litigation 
and  financial  arrangements  that  are  likely  to  present  potential 
conf licts-of-interest  during  your  initial  service  in  the  position 
to  which  you  have  been  nominated. 

I  will  seek  and  follow  the  advice  of  the  Department  of 
Justice  ethics  officials  before  participating  in  any  matter  that 
could  affect  my  financial  interest,  and  recuse  myself  or  sell 
stock  to  eliminate  that  conflict  where  necessary.   Currently,  the 
only  potential  conflicts  of  interest  I  anticipate  involve  stock  I 
may  own.   I  do  not  anticipate  potential  conflicts  of  interest 
during  my  initial  service  in  the  position  to  which  I  have  been 
nominated. 

3.  Do  you  have  any  plans,  commitments,  or  agreements  to  pursue 
outside  employment,  with  or  without  compensation,  during  your 
service  in  the  position  to  which  you  have  been  nominated?   If  so, 
explain. 

I  have  been  invited  by  Georgetown  University  Law  Center  to 
continue,  and  I  plan  to  continue,  co-teaching  a  one-semester 
course  in  environmental  law  at  Georgetown  University  Law  Center 
in  1994  on  an  unpaid  basis.   I  have  no  other  plans,  commitments, 
or  agreements  to  pursue  outside  employment  during  my  service  in 
the  position  to  which  I  have  been  nominated. 

4.  List  sources  and  amounts  of  all  income  received  during  the 
calendar  year  preceding  your  nomination  and  for  the  current 

-  28  - 


260 


calendar  year,  including  all  salaries,  fees,  dividends,  interest, 
gifts,  rents,  royalties,  patents,  honoraria,  and  other  items 
exceeding  $500  or  more.   (If  you  prefer  to  do  so,  copies  of  the 
financial  disclosure  report,  required  by  the  Ethics  in  Government 
Act  of  1978,  may  be  substituted  here.) 

A  copy  of  the  financial  disclosure  report  required  by  the 
Ethics  in  Government  Act  of  1978  is  attached. 

5.  Please  complete  the  attached  financial  net  worth  statement  in 
detail  (Add  schedules  as  called  for) . 

A  typed  version  of  the  attached  financial  net  worth 
statement  is  attached. 

6.  Have  you  ever  held  a  position  or  played  a  role  in  a  political 
campaign?   If  so,  please  identify  the  particulars  of  the 
campaign,  including  the  candidate,  dates  of  the  campaign,  your 
title  and  responsibilities. 

I  participated  in  the  campaign  for  Clinton  for  President  as 
a  member  of  a  committee  on  environmental  issues  in  1992.   Work  on 
this  committee  included  drafting  a  memorandum  on  environmental 
justice  and  attending  meetings.   I  have  not  had  titles  or 
assigned  responsibilities  in  any  campaign. 


-  29  - 


261 

FINANCIAL  STATEMENT 
NET  WORTH 


Provide  a  complete,  current  financial  net  worth  statement  which  itemizes  in  detail  all  assets  (including  ba 
accounts,  real  estate,  securities,  trusts,  investments,  and  other  financial  holdings)  all  liabilities  (including  deb 
mortgages,  loans,  and  other  financial  obligations)  of  yourself,  your  spouse,  and  other  immediate  members 
your  household. 


ASSETS 

UABIUTIES 

Cain  on  hand  and  In  banks 

7^  •*--: 

Notes  payable  to  banks     secured 

Notes  payable  to  bank*— unsecured 

Notes  payable  to  relatives 

Notes  payable  to  ottiers 

Accounts  snd  bills  due 

Unpaid  income  ui 

Other  unpaid  Ui  snd  Interest 

Real  estate  mortgages  payable— add' 
schedule 

Chattel  mortgages  snd  other  Uens 
payable 

Other  debts — Itemlie: 

U.S.  Government  securities— edd 

<_ 

schedule 

Listed  ucuntln — edd  schedule' 

J  ~3      .„   1 

^ 

_ 

Unlisted  neuritis*— edd  schedule 

,  .• 

Accounts  snd  noun  receivable: 

Dus  from  relatives  snd  friends 

i- 

Dus  from  others 

">  >. 

Doubtful                                        , 

* 

fits'  sststs  ownsd — sdd  schedule 

i  '  y  , .  - 

f 

Rssi  nun  mortgages  reeeivsble 
Autos  snd  othsr  psrsonsl  property 
Cssn  value— lift  Insurance 

^' 

i  i  C  -V  - 

I    /Id/-  m  '      fU  K-«-~.f    fko    * 

l  V  -|    ;  i  (. 

1  /.  A       —    J-    1  V-  •    l          -    .     L     /.  u   J 

i  v. ; 

1 '    "      "*         'i  ■                                          i 

\.  r     ...  Uv.     f       ■  -  ..  ->■-) 

,i»7 

Total  liabilities 
Net  worth 

Total  liabilities  and  net  worth 

"i  /  •• 

':•:[    •■■'.. 

Toul  esseti 

'r-i  ,-i.j: 

')  *'  ■>"*   .  1  - 

CONTINGENT   LIABILITIES 

GENERAL  INFORMATION 

As  endorser,  comaker  or  guarantor 

L 

Are  any  assets  pledged?  (Add  sched- 
ule.) 

/_ 

On  leases  or  contracts 

Legal  Claims 

V- 

Are  you  defendsnt  In  any  stilts  or 

legal  actions?                                      L 

A 

Prevision  (er  Teds.-:.'  !ne=.-n«  Tax 

c 

1 

'- 

Other  speciel  debt 

29A 


262 


Net  Worth  -statement  -   Lois  Schiffer.  December  31.  1993 

Schedule  of  Listed  Securities: 

Atlantic  Energy  -  800  shares  -  $17,000 

Bear  Stearns  -  600  shares  -  $14,175 

Capstead  Mortgage  -  300  shares  -  $12,000 

FPL  Group  (IRA)  -  400  shares  -  $14,800 

General  Mills  -  32  shares  -   $1944 

Handleman  (IRA)  -  1000  shares  -  $13,250 

Legg  Mason  -  600  shares  -  $14,775 

Liz  Claiborne  -  1500  shares  -  $33,188 

Morgan  Stanley  -  200  shares  -  $14,775 

Municipal  Bond  Unit  Trust  -  16  shares  -  FMV  $8358 

(Merrill  Lynch  SR  78) 
Municipal  Bond  Unit  Trust  -  1  share  -  FMV  $25 

(Merrill  Lynch  SR  100) 
Municipal  Bond  Unit  Trust  -  1  share  -  FMV  $727 

(Merrill  Lynch  SR  110) 
Municipal  Bond  Unit  Trust  -  8  shares  -  FMV  $1359 

(Merrill  Lynch  SR  119) 
Municipal  Bond  Unit  Trust  -  1  share  -  FMV  $848 

(Merrill  Lynch  SR  132) 
Municipal  Investment  Trust  -  8  shares  -  FMV  $8358 

(Merrill  Lynch) 
Municipal  Fund  Invest.  -  FMV  $19,800 

(Merrill  Lynch) 
National  Medical  Enterprises  (IRA)  -  1500  shares  -  $22,500 
Potomac  Electric  Power  Co.  (SEP)  -  187  shares  -  $4,698 
Russell  Corporation  -  900  shares  -  $23,850 
Stride  Rite  (SEP)  -  1200  shares  -  $20,850 
T  Squared  Medical  -  2100  shares  -  $16,013 
Woolworth's  -  600  shares  -  $15,375 


Total  listed  securities:   $278,668 
Schedule  on  Real  Estate 


1.  I  own  at  house  at  4640  Brand/wine  St.  NW,  Washington,  DC 
20016.   My  best  estimate  of  its  current  value  is  $375,000.   I 
have  an  outstanding  mortgage  of  approximately  $48,000  with 
Maryland  National  Mortgage  Corporation. 


29B 


263 


III,   genera;  (public) 

1.  An  ethical  consideration  under  Canon  2  of  the  American  Bar 
Association's  Code  of  Professional  Responsibility  calls  for 
•every  lawyer,  regardless  of  professional  prominence  or 
professional  workload,  to  find  some  time  to  participate  in 
serving  the  disadvantaged."  Describe  what  you  have  done  to 
fulfill  these  responsibilities,  listing  specific  instances  and 
the  amount  of  time  devoted  to  each. 

I  have  had  a  longstanding  commitment  as  a  lawyer  to  serving 
the  disadvantaged.   During  law  school,  I  spent  the  summer  of  1967 
working  at  the  NAACP  Legal  Defense  and  Education  Fund  in 
Mississippi  on  civil  rights  issues.   Upon  graduating  from  law 
school  in  1969,  I  worked  for  close  to  a  year  on  a  Reginald  Heber 
Smith  Fellowship  at  the  Boston  Legal  Assistance  Project,  a  legal 
services  office,  where  I  participated  in  cases  on  behalf  of  low- 
income  Bostonians. 

In  1970,  I  moved  back  to  Washington,  D.C.,  and  after  a  year 
as  a  law  clerk,  I  entered  private  practice.   During  my  tenure  at 
Leva,  Hawes  (1971  to  1974),  I  handled  several  court-appointed 
criminal  appeals,  and  several  other  pro  bono  cases  on  behalf  of 
disadvantaged  people,  including  a  suit  on  behalf  of  a  short  woman 
who  wanted  to  become  a  D.C.  police  officer,  a  job  from  which  she 
was  precluded  because  of  her  height.   The  case  settled 
successfully  and  the  D.C.  Police  Department  lowered  the  height 
requirement. 

From  1974  to  early  1978,  I  worked  for  the  Women's  Rights 
Project  of  the  Center  for  Law  and  Social  Policy,  a  public 
interest  law  firm.   My  work  there  centered  on  protecting  the 
needs  and  interests  of  women,  including  poor  and  minority  women, 
in  the  areas  of  education,  health,  and  insurance.   I  participated 
on  committees  addressed  to  these  interests,  and  handled  lawsuits 
(including  WEAL  v.  Mathews) ,  filed  comments  before  administrative 
agencies,  and  provided  information  and  testimony  to  Congress  on 
these  issues. 

Also  during  those  years,  I  became  active  in  the  District  of 
Columbia  Bar,  a  unified  bar  in  the  District  of  Columbia  with  a 
strong  record  of  commitment  to  the  disadvantaged.   I  co-chaired 
the  Criminal  and  Individual  Rights  Committee,  which  among  other 
things  focused  on  issues  that  affected  the  disadvantaged.   I  also 
served  on  the  Board  and  litigation  screening  committees  of  the 
Women's  Legal  Defense  Fund,  a  public  interest  organization 
devoted  to  advancing  the  needs  and  interests  of  women,  especially 
disadvantaged  women. 

From  1978  to  1984,  I  worked  at  the  Department  of  Justice  in 
the  Land  and  Natural  Resources  Division.   I  spent  some  of  those 
years  as  Chief  of  the  General  Litigation  Section,  where  I  worked, 

-  30  - 


264 


successfully,  to  diversify  the  attorney  workforce.   During  this 
time,  I  hope  that  I  brought  to  bear  a  sensitivity  to  the 
disadvantaged  as  they  were  affected  by  the  actions  of  the  federal 
government  that  we  enforced  or  defended.   One  case  in  particular 
illustrates  my  concern.  A  group  of  residents  in  Selma,  Alabama 
brought  suit  under  the  National  Environmental  Policy  Act  and 
other  statutes  to  reguire  the  military,  which  was  closing  a  base 
in  Selma,  to  make  available  the  housing  on  that  base  to  both  poor 
people  and  black  people  in  the  area.   Consistent  with  effective 
defense  of  the  United  States'  actions  and  interests,  I  worked 
with  a  number  of  government  agencies  to  settle  the  lawsuit  in  a 
way  that  resulted  in  some  of  the  housing  being  made  available  to 
the  disadvantaged  residents  of  Selma. 

During  this  period,  I  also  worked  with  an  interagency 
committee  to  open  to  government  attorneys  greater  opportunities 
to  undertake  pro  bono  representation,  including  the 
representation  of  the  disadvantaged.  I  also  was  elected  to  the 
Board  of  the  District  of  Columbia  Bar,  where  I  worked  to  assure 
that  the  Bar  had  a  strong  public  service  program  serving  the  poor 
and  disadvantaged.   I  served  on  the  Boards  of  the  Women's  Legal 
Defense  Fund  and  of  the  American  Civil  Liberties  Union  of  the 
National  Capitol  Area;  both  organizations  devote  some  of  their 
resources  to  handling  cases  and  addressing  concerns  of  the 
disadvantaged.   As  a  member  of  the  Litigation  Screening  Committee 
of  the  American  Civil  Liberties  Union,  I  urged  the  organization 
to  take  cases  that  advanced  the  rights  of  minorities  and  the 
disadvantaged . 

During  the  past  ten  years,  I  have  continued  to  work  with  the 
District  of  Columbia  Bar,  the  Women's  Legal  Defense  Fund,  and  the 
American  Civil  Liberties  Union  (including,  from  1991-1993  the 
Board  of  the  National  American  Civil  Liberties  Union)  and  have 
sought  to  have  the  work  of  those  organizations  address  the  needs 
of  the  disadvantaged.   For  example,  during  my  tenure  on  the 
American  Civil  Liberties  Union/NCA  Board,  we  adopted  a  Community 
Outreach  plan  addressed  to  just  those  concerns.   In  addition,  I 
have  been  a  member  of  the  District  of  Columbia  Circuit  Judicial 
Conference  that  adopted,  and  have  actively  supported,  a  rule 
urging  all  lawyers,  as  an  obligation  of  the  profession,  to  commit 
40  hours  or  $200  each  year  to  the  disadvantaged. 

2.  Do  you  currently  belong,  or  have  you  belonged,  to  any 
organization  which  discriminates  on  the  basis  of  race,  sex,  or 
religion  — through  either  formal  membership  reguirements  or  the 
practical  implementation  of  membership  policies?   If  so,  list, 
with  dates  of  membership.   What  you  have  [sic]  done  to  try  to 
change  these  policies? 

I  have  not  belonged  to  any  organization  that  discriminates 
on  the  basis  of  race,  sex,  or  religion. 


-  31  - 


265 


ATTACHMENT  A 


6. 


8. 


9. 


10. 


11. 


12. 


13. 


14. 


15. 


16. 


Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Dec  09,  1993 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Dec  09,  1993 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Dec  09,  1993 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Dec  09,  1993 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Dec  09,  1993 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Dec  09,  1993 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Dec  09,  1993 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Sep  14,  1992 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Sep  11,  1992 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Sep  11,  1992 

Monsanto  Co.  v.  Aetna  Cas 
(Del. Super.,  Sep  02,  1992 


and  Sur.  Co. ,  1993  WL  542399 
(NO.  88C-JA-118) 

and  Sur.  Co.,  1993  WL  542402 
(NO.  88C-JA-118) 

and  Sur.  Co.,  1993  WL  542406 
(NO.  88C-JA-118) 

and  Sur.  Co.,  1993  WL  542412 
(NO.  88C-JA-118) 

and  Sur.  Co.,  1993  WL  542419 
(NO.  88C-JA-118) 

and  Sur.  Co.,  1993  WL  542428 
(NO.  88C-JA-118) 

and  Sur.  Co.,  1993  WL  542431 
(NO.  88C-JA-118) 

and  Sur.  Co. ,  1992  WL  302261 
(NO.  88C-JA-118) 

and  Sur.  Co.,  1992  WL  245577 
(NO.  88C-JA-118) 

and  Sur.  Co.,  1992  WL  245578 
(NO.  88C-JA-118) 

and  Sur.  Co.,  1992  WL  245579 
(NO.  88C-JA-118) 


Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1992  WL  212516 
(Del.Ch.,  Jul  30,  1992)  (NO.  C.A.  9576) 

Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1992  WL  182325 
(Del. Super.,  Jun  12,  1992)  (NO.  88C-JA-118) 

Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1992  WL  182320 
(Del. Super.,  May  26,  1992)  (NO.  88C-JA-118) 

Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1992  WL  182322 
(Del. Super.,  May  26,  1992)  (NO.  88C-JA-118) 

Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1992  WL  19949 
(Del. Super.,  Jan  31,  1992)  (NO.  C.A.  88C-JA-118) 

COPR.  (C)  WEST  1994  NO  CLAIM  TO  ORIG.  U.S.  GOVT.  WORKS 


266 


17.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  236936 
(Del. Super.,  Oct  29,  1991)  (NO.  C.A.  88C-JA-lld) 

18.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  216456 
(Del. Super.,  Oct  16,  1991)  (NO.  C.A.  88C-JA-118) 

19.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  215621 
(Del.Ch.,  Sep  25,  1991)  (NO.  C.A.  9576,  C.A.  88C-JA-118) 

20.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  190336 
(Del. Super.,  Sep  06,  1991)  (NO.  C.A.  88C-JA-118) 

21.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  190272 
(Del.Ch.,  Sep  05,  1991)  (NO.  C.A.  9576,  C.A.  88C-JA-118) 

22.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  138586 
(Del. Super.,  Jun  17,  1991)  (NO.  C.A.  88C-JA-118) 

23.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  138587 
(Del. Super.,  Jun  17,  1991)  (NO.  C.A.  88C-JA-118) 

24.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  113608 
(Del. Super.,  Jun  04,  1991)  (NO.  C.A.  88C-JA-118) 

25.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  89786 
(Del. Super.,  May  02,  1991)  (NO.  C.A.  88C-JA-118) 

26.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  53822 
(Del. Super.,  Apr  08,  1991)  (NO.  C.A.  88C-JA-118) 

27.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  53824 
(Del. Super.,  Mar  27,  1991)  (NO.  C.A.  88C-JA-118) 

28.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  35684 
(Del. Super.,  Mar  13,  1991)  (NO.  C.A.  9576,  C.A.  88C-JA-118) 

29.  Monsanto  Co.  v.  Aetna,  1991  WL  18127  (Del. Super.,  Feb  11,  1991) 
(NO.  C.A.  88C-JA-118) 

30.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1991  WL  18126 
(Del. Super.,  Feb  05,  1991)  (NO.  C.A.  88C-JA-118) 

31.  Monsanto  Co.  v.  Aetna  Cas.  &  Sur.  Co.,  1991  WL  14112 
(Del. Super.,  Jan  03,  1991)  (NO.  C.A.  88C-JA-118) 

32.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1990  WL  200464 
(Del. Super.,  Dec  04,  1990)  (NO.  C.A.  88C-JA-118) 

33.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1990  WL  200471 
(Del. Super.,  Dec  04,  1990)  (NO.  C.A.  88C-JA-118) 

COPR.  (C)  WEST  1994  NO  CLAIM  TO  ORIG.  D.S.  GOVT.  WORKS 


267 


34.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1990  ML  200482 
(Del. Super.,  Nov  20,  1990)  (NO.  C.A.  88C-JA-118) 

35.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1990  WL  179885 
(Del. Super.,  Nov  16,  1990)  (NO.  C.A.  88C-JA-118) 

36.  North  American  Phillips  Corp.  v.  Aetna  Cas.  and  Sur.  Co.,  1990  WL  140103 
(Del. Super.,  Sep  19,  1990)  (NO.  C.A.  88C-JA-155,  C.A.  88C-JA-118) 

37.  Monsanto  Co.  v.  Aetna  Cas.  &  Sur.  Co.,  593  A. 2d  1013 
(Del. Super.,  Sep  10,  1990)  (NO.  CIV.  A.  88C-JA-118) 

38.  Monsanto  Co.  v.  Aetna  Cas.  6  Sur.  Co.,  1990  WL  122989 
(Del.Ch.,  Jul  27,  1990)  (NO.  C.A.  9576) 

39.  Monsanto  Co.  v.  Aetna  Cas.  &  Sur.  Co.,  1990  WL  96588 
(Del. Super.,  Jul  11,  1990)  (NO.  C.A.  88C-JA-118) 

40.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1990  WL  82006 
(Del.Ch.,  Jun  08,  1990)  (NO.  C.A.  9576) 

41.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  577  A. 2d  754  (Table,  Text  in 
WESTLAW) ,  Unpublished  Disposition,  1990  WL  72535 

(Del.Supr.,  Apr  16,  1990)  (NO.  82,1990) 

42.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1990  WL  35312 
(Del. Super.,  Mar  27,  1990)  (NO.  C.A.  88C-JA-118) 

43.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  1990  WL  9496 
(Del. Super.,  Jan  19,  1990)  (NO.  C.A.  88C-JA-118) 

44.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  565  A. 2d  268 
(Del. Super.,  May  22,  1989)  (NO.  CIV.  A.  88C-JA-118) 

45.  Monsanto  Co.  v.  Aetna  Cas.  and  Sur.  Co.,  559  A. 2d  1301 
(Del. Super.,  Oct  21,  1988)  (NO.  CIV.  A.  88-C-JA-118) 

END  OF  CITATIONS  LIST 

COPR.  (C)  WEST  1994  NO  CLAIM  TO  ORIG.  U.S.  GOVT.  WORKS 


268 

ATTACHMENT  B 

SERVICE  LIST 

MONSANTO  COMPANY  v.  AETNA  CASUALTY  &  SURETY  CO.,  tt  ll. 

Del.  Super.,  C.A.  No.  88C-JA-118-1-CV 

Del.  Ch.,  C.A.  No.  9576 


PLAINTIFF 


Attorneys  for  Plaintiff 


ANDERSON  KILL  OLICK  &  OSHINSKY 
*Jerold  Oshinsky 
Lorelie  S.  Masters 
2000  Pennsylvania  Ave.,  N.W. 
Suite  7500 

Washington,  D.C.  20006 
Phone  t:  (202)  728-3100 

Telecopy  t:    (202)  728-3199 


DONNENFELD  BRAY  & 


SCHWALB, 
SILBERT 

*John  M.  Bray 
David  J.  Curtin 
1025  Thomas  Jefferson 
Suite  300  East 
Washington,  D.C.  20U07 
Phone  t:  202-96^- 

Telecopy  t:    202-337- 


St. 


7910 
067  6 


NW 


POTTER,  ANDERSON  t  CORROON 
•Richard  E.  Poole 
Richard  L.  Horvitz 
350  Delaware  Trust  Building 
902  Market  Street 
Wilmington,  Delaware  19802 
(P.O.  Box  951;  USE  ZIP  19899) 
Phone  /:  (302)  658-6771 

Telecopy  /:  (302)  658-7851 
658-1192 
655-1190 

ANDERSON  KILL  OLICK  i   OSHINSKY 

Patricia  A.  Van  Dyke 

666  Third  Avenue 

New  York,  New  York  10017 

Phone  /:     (212)  850-0700 

Telecopy  /:  (212)  850-0733 


or  342-7158 


DEFENDANTS 
Counsel  for  Aetna  Casualty  and  Surety  Company 


MILLER,  CASSIDY,  LARROCA  4 
LEWIN 
•James  E.  Rocap,  III 
Barbara  Straugh  Harris 
D.  Bradley  Clements 
2555  M  Street,  N.W. 
Suite  500 

Washington,  D.C.  20037 
Phone  /:     (202)  293-6400 
Telecopy  t:    (202)  293-1827 


HEIMAN,  ABER  k   GOLDLUST 

Gary  W.  Aber 

First  Federal  Plaza 

702  King  Street 

P.O.  Box  1675 

Wilmington,  Delaware  19899 

Phone  #:     (302)  658-1800 

Telecopy  #:  (302)  658-1473 


•Lead  Counsel 
**Major  Party  Involvement 
'*Co-Counsel 


July  12,  1993 


269 


Counsel  for  Allatata  Inauranca  Company 


GLEASON,  McGUIRE  4  SHREFFLER 

Nancy  J.  Gleason 

Michael  R.  Orlando 

140  south  Dearborn 

Suite  700 

Chicago,  Illinois  60603 

Phone  /:    (312)  641-0580 

Telecopy  /:  (312)  641-0380 


SMITH,  KATZENSTEIN  4 
FURLOW 
*  Robert  J.  Katzenatein 
Laurence  V.  Cronin 
1220  Market  Building,  5th  Floor 
P.O.  Box  410 

Wilmington,  Delaware  19899 
Phone  f:  (302)  652-8400 

Telecopy  i:    (302)  652-8405 


Counsel  for 
AIG  Companies 
AIU  Insurance  Company 
American  Home  Assurance  Company 

Birmingham  Fire  Insurance  Company  of  Pennsylvania 
Granite  State  Insurance  Company 
Insurance  Company  of  the  State  of  Pennsylvania 
Lexington  Insurance  Company 
National  Union  Fire  Insurance  Company  of  Pittsburgh 


JACKSON  4  CAMPBELL,  P.C. 
•James  P.  Schaller 
Robert  N.  Kelly 
One  Lafayette  Center 
1120  20th  Street,  N.W. 
Suite  300  South 
Washington,  D.C.   20036 
Phone  t:  (202)  457-1600 

Telecopy  #:  (202)  457-1678 


YOUNG,  CONAWAY,  STARGATT  4 

TAYLOR 
Anthony  G.  Flynn 
11th  and  Market  Street 
Rodney  Square  North,  11th  Floor 
Wilmington,  Delaware  19899 
Phone  t:  (302)  571-6600 

Telecopy  /:    (302)  571-1253 


Counsel  for  American  Manufacturers  Mutual  Insurance  Company 


DRINKER,  BIDDLE  4  REATH 
'Graham  Robb,  Esq. 
James  M.  Sweet,  Esq. 
1100  Philadelphia  National 

Bank  Bldg. 
Broad  &  Chestnut  Streets 
Philadelphia,  PA  19107 
Phone  t:  (215)  988-2700 

Telecopy  i:     (215)  988-2757 


BIGGS  4  BATTAGLIA 

Robert  K.  Beste,  Jr. 

1206  Mellon  Bank  Center 

P.O.  Box  1489 

Wilmington,  Delaware  19899-1489 

Phone  I:  (302)  655-9677 

Telecopy  /:  (302)  655-7924 


Counsel  for  Appalachian  Insurance  Company 


PRIESTLEY,  McGUIRL  4  WACHENFELD 

William  S.  Wachenfeld 

10  Park  Place 

Newark,  New  Jersey  07102 

Phone  t:  (201)  623-0700 

Telecopy  /:  (201)  648-0815 

*Lead  Counsel 
**Major  Party  Involvement 
>**Co-Counsel 


BURT  4  BURT 
David  Burt 
Phone  /:   (302) 


429-9430 


July  12,  1993 


270 


Counsel  for  C.E.  Heath  Compensation  and  Liability  Insurance 
Company 


CONNOLLY,  BOVE,  LODGE  &  HUTZ 
Henry  E.  Gallagher,  Jr. 
Collins  J.  Seitz,  Jr. 
1220  Market  Street 
Wilmington,  Delaware  19801 
Phone  /:     (302)  658-9141 
Telecopy  /:  (302)  658-5614 


CHRISTIE,  PABARUE,  MORTENSEN 

&  YOUNG 
James  A. A.  Pabarue 
10th  PI.,  1880  JFK  Blvd. 
Philadelphia,  PA  19103 
Phone  /:     (215)  587-1600 
Telecopy  t:    (215)  587-1699 


Counsel  for  California  Onion  Insurance  Company,  Insurance  Company 
of  North  America  flNA)  and  Pacific  Employers  Insurance  Company 


WILMER,  CUTLER  i   PICKERING 
A.  Stephen  Hut,  Jr. 
2445  M  Street,  N.W. 
Washington,  D.C.  20037-1420 
Phone  #:     (202)  663-6000 
Telecopy  #:  (202)  293-0074 


SAWYER  &  AKIN,  P. A. 
Bruce  C.  Herron 
Roger  A.  Akin 

Manufacturers  Hanover  Plaza 
1201  N.  Market  Street 
P.O.  Box  25047 
Wilmington,  Delaware  19899 
Phone  t:  (302)  655-5552 

Telecopy  f:    (302)  655-3697 


Counsel  for  Columbia  Casualty  Company  4  Continental  Casualty  Company 


HASKELL  &  PERRIN 
•Marsha  K.  Ross 
Eileen  M.  King  Bower 
200  West  Adams  Street,  /2600 
Chicago,  Illinois  60606 
Phone  #:     (312)  781-9393 
Telecopy  t:    (312)  781-9178 


THEISEN,  LANK,  MULFORD  4  GOLDBERG 
John  G.  Mulford 

One  Commerce  Center,  9th  Floor 
12th  and  Orange  Streets 
Wilmington,  Delaware  19801 
Phone  /:     (302)  656-7712 
Telecopy  /:  (302)  655-0923 


Counsel  for  Employers  Insurance  of  Wausau  a  Mutual  Company 
(Wausau  Underwriters  Insurance  Company) 


YOUNG,  CONAWAY,  STARGATT  4 

TAYLOR 
'Anthony  G.  Flynn 
Uth  and  Market  Street 
Rodney  Square  North,  11th  Floor 
Wilmington,  Delaware  19899 
Phone  *:  (302)  571-6600 

Telecopy  /:  (302)  571-1253 


*Lead  Counsel 
**Major  Party  Involvement 
***Co-Counsel 


ZELLE  4  LARSON 
William  Gerald  McElroy,  Jr. 
John  T.  Harding 
Three  University  Office  Park 
95  Sawyer  Road,  Suite  500 
Waltham,  Massachusetts  02154 
Phone  /:     (617)  891-7020 
Telecopy  t:    (617)  891-7665 
NOTE:  Do  not  include  on  mail/ 
fax  transmissions. 


July  12,  1993 


271 


Counsel  for  Fireman's  Fund  Insurance  Company 


RIVKIN,  RAOLER  i  KREMER 
Gary  0.  Cento la 
. Phi lip  L.  Narotzky 
Jeffrey  D.  Wait 
EAB  Plaza 

Uniondale,  New  York  11556-0111 
Phone  /:     (516)  357-3000 
Telecopy  t:    (516)  357-3333 


BAYARD,  HANDELMAN  i   MURDOCH, 

Richard  K.  Herrmann 

902  Market  Street  Mall 

13th  Floor 

Wilmington,  Delaware  19801 

Phone  #:     (302)  655-5000 

Telecopy  t:    (302)  658-4312 


P. A. 


Counsel  for  First  State  Insurance  Company, 
Royal  Indemnity  Company 
and  New  England  Insurance  Company 


SIFF  ROSEN  P.C. 
David  M.  Pollack 
'Deborah  L.  Shews rd 
233  Broadway 

New  York,  New  York  10279 
Phone  $:  (212)  238-8400 

Telecopy  /:  (212)  693-0654 


TRZUSKOWSKI,  KIPP,  KELLEHER 

PEARCE,  P. A. 

Edward  F.  Kafader 

1020  North  Bancroft  Parkway 

Wilmington,  Delaware  19805 

Phone  /:     (302)  571-1782 

Telecopy  I:    (302)  571-1638 


Counsel  for  Hartford  Accident  and  Indemnity  Company 


HOCAN  &  HARTSON 
John  P.  Arness 
William  J.  Cassidy,  Jr. 
*P.  Dustin  Finney,  Jr. 
Columbia  Square 
555  13th  Street,  N.W. 
Washington,  D.C.  20004 
Phone  t:  (202)  637-5600 

Telecopy  i:    (202)  637-5910 


TRZUSKOWSKI,  KIPP,  KELLEHER  k 

PEARCE,  P. A. 
Edward  F.  Kafader 
1020  North  Bancroft  Parkway 
Wilmington,  Delaware  19805 
Phone  t:  (302)  571-1782 

Telecopy  /:  (302)  571-1638 


Counsel  for  Hudson  Insurance  Company  and  National  Casualty  Company 


LeBOEUF,  LAMB,  LEIBY  i   MacRAE 

Cynthia  Andreason 

1875  Connecticut  Avenue,  N.W. 

Suite  1200 

Washington,  D.C.  20009-5728 

Phone  #:     (202)  986-8000 

Telecopy  #:  (202)  986-8102 


*  Elizabeth  B.  Sandza,  Esq. 
901  Market  Street 
Suite  460 

Wilmington,  DE  19801 
(302)  656-9299 
(302)  429-5953 


•Lead  Counsel 
"Major  Party  Involvement 
'••Co-Counsel 


July  12,  1993 


272 


Counsel  for  International  Insurance  Company  rEIL  Policy) 


MORRIS,  JAMES,  HITCHENS  t 
WILLIAMS 
*Mames  W.  Semple 
222  Delaware  Avenue 
P.O.  Box  2306 
Wilmington,  Delaware  19899 
Phone  t:  (302)  888-6800 

Telecopy  /:  (302)  571-1750 


ORRICK,  HERRINGTON  *  SUTCLIFFE 
*  Frederick  Brown 
Old  Federal  Reserve  Bank  Bldg. 
400  Sansome  Street 
San  Francisco,  California  94111 
Phone  t:  (415)  392-1122 

Telecopy  #:  (415)  773-5759 


Counsel  for  International  Insurance  Company  (CGL) 
and  United  States  Fire  Insurance  Company 


MCELROY,  DEUTSCH  &  MULVANEY 
Kevin  T.  Cough 1  in 
♦John  Whitteaker 

1300  Mt.  Kemble  Avenue  (Rt.  202) 
P.O.  Box  2075 

Morristown,  New  Jersey  07962-2075 
Phone  #:  (201)  993-8100 
Telecopy  /:  (201)  425-0161 


HECKLER  t  CATTIE 
William  J.  Cattle,  III 
Ninth  Street  Plaza  Bldg. 
200  West  Ninth  Street 
Third  Floor 

Wilmington,  Delaware  19801 
Phone  /:  (302)  573-4800 
Telecopy  f:    (302)  573-4806 


Counsel  for  Liberty  Mutual  Insurance  Company 


ELZUFON,  AUSTIN  &  DREXLER,  P. A. 
**Lawrence  S.  Drexler 


1201  Market 

Street 

Suite  2100 

Wilmington, 

Delaware  19899-1630 

Phone  #: 

(302)  428-3181 

Telecopy  #: 

(302)  428-3180 

MANTA  AND  WELGE 

Joseph  G.  Manta 

Jacqueline  A.  Borock 

David  S.  Florig 

Mark  J.  Manta 

37th  Floor 

One  Commerce  Square 

2005  Market  Street 

Philadelphia,  Pennsylvania  19103 

Phone  #:    (215)  851-6600 

Telecopy  f:    (215)  851-6644 


Counsel  for  Certain  Underwriters  at  Lloyd's,  London 
and  London  Market  Insurance  Companies 


NUSSBAUM  4  WALD 
*** Michael  Nussbaum 
Lois  J.  Schiffer 
Jean  M.  Scott 
Stephen  H.  Marcus 
One  Thomas  Circle,  N.W.,  /200 
Washington,  D.C.  20005 
Phone  #:     (202)  833-8900 
Telecopy  §:     (202)  466-5738 


MURPHY  WELCH  t    SPADARO 

Francis  J.  Murphy 

John  S.  Spadaro 

824  Market  Street,  1st  Floor 

Marine  Midland  Plaza 

P.O.  Box  8989 

Wilmington,  Delaware  19899 

Phone  t:  (302)  654-4600 

Telecopy  /:  (302)  654-4775 


*Lead  Counsel 
**Major  Party  Involvement 
***Co-Counsel 


July  12,  1993 


273 


Counsel  for  Worth  Star  Reinsurance  Corporation 


SKADDEN,  ARPS,  SLATE,  MEAGHER 
«  FLOM 
** Irene  A.  Sullivan 
Timothy  C.  Reynolds 
919  Third  Avenue 
New  York,  New  York  10022 
Phone  #:     (212)  735-3000 
Telecopy  t:    (212)  735-2001 


SKADDEN,  ARPS,  SLATE,  MEAGHER 

k   FLOM 
Robert  M.  Omrod 
Kevin  F.  Brady 

One  Rodney  Square,  7th  Floor 
Wilmington,  Delaware  19801 
Phone  #:     (302)  651-3000 
Telecopy  f:    (302)  651-3001 
429-9216 


Counsel  for  Northwestern  National  Insurance  Company 


WILSON,  ELSER,  MOSKOWITZ, 

EDELMAN  k    DICKER 
Stephen  D.  Straus 
Eileen  Eglin 
150  E.  42nd  Street 
New  York,  New  York  10017-5639 
Phone  #:     (212)  490-3000 
Telecopy  t      (212)  490-3038 


CASARINO,  CHRISTMAN  k   SHALK 
Kenneth  M.  Doss 
Stephen  P.  Casarino 
222  Delaware  Avenue 
Suite  1220 

Wilmington,  Delaware  19801 
Phone  /:  (302)  594-4500 

Telecopy  t:    (302)  594-4509 


Counsel  for  Protective  National  Insurance  Company  of  Omaha 


OBER,  KALER,  GRIMES  k    SHRIVER 
Benjamin  Gonson,  Esquire 
1345  Avenue  of  the  Americas 
New  York,  New  York   10105-0010 
Phone  0:  (212)  315-3200 

Telecopy  #:  (212)  315-3242 


CASARINO,  CHRISTMAN  k    SHALK 
Stephen  P.  Casarino 
Donald  Ransom 

222  Delaware  Avenue,  #1220 
Wilmington,  Delaware  19801 
Phone  /:  (302)  594-4500 
Telecopy  /:  (302)  594-4509 


counsel  for  St.  Paul  Surplus  Lines  Insurance  Company 


YOUNG,  CONAWAY,  STARGATT 

k   TAYLOR 
•Anthony  G.  Flynn 
Frederick  w.  lobst 
James  F.  Matter 
Rodney  Square  North 
llth  4  Market  Street 
Wilmington,  Delaware  19899 
Phone  #:     (302)  571-6600 
Telecopy  #:  (302)  571-1253 


ADAMS,  DUQUE  k   HAZELTINE 
Kimball  Ann  Lane 
Patricia  Dee  Bilka 
551  Madison  Avenue 
8th  Floor 

New  York,  New  York   10022 
Phone  t:  (212)  750-1240 

Telecopy  /:    (212)  644-9727 


*Lead  Counsel 
"Major  Party  Involvement 
'**Co-Counsel 


July  12,  1993 


274 


counsel  for  The  Home  Insurance  Company 


STEPTOE  t   JOHNSON 
Christopher  T.  Lutz 
1330  Connecticut  Avenue 
Washington,  D.C.  20036 
Phone  t:  (202)  429-6440 

Telecopy  #!  (202)  429-9204 
429-9205 


ROSENTHAL,  MONHAIT 

i   GROSS,  P. A. 
Norman  M.  Honhait 
First  Federal  Plaza 
Suite  214 

Wilmington,  Delaware  19801 
Phone  /:  (302)  656-4433 
Telecopy  f:    (302)  658-7567 


Counsel  for  Travelers  Indemnity  Company 


WILEY,  REIN  &  FIELDING 
**  Bert  W.  Rein 

Richard  L.  McConnell 
Mitchell  B.  Kriendler 
1776  K  Street,  N.W. 
Washington,  D.C.  20006 
Phone  t:  (202)  429-7000 

Telecopy  /:  (202)  429-7207/7049 


DUANE,  MORRIS  k    HECKSCHER 

Judith  N.  Renzulli 

1201  Market  Street,  Suite  1500 

P.O.  Box  195 

Wilmington,  Delaware  19899 

Phone  t:  (302)  571-5550 

Telecopy  /:  (302)  571-5560 


Counsel  for  Unioard  Security  Insurance  Company 


J.  R.  JULIAN,  P. A. 

J.  R.  Julian 

824  Market  Street 

Suite  1001 

Wilmington,  Delaware  19899 


Phone  t: 


(302)  658-6700 


Telecopy  i:    (302)  658-6708 


TAYLOR,  ANDERSON  &  TRAVERS 
James  J.  Duane,  III 
Susan  G.  Winkler 
7  5  Federal  Street 
Boston,  Massachusetts  02110 


Phone  /: 


(617)  654-8200 


Telecopy  /:  (617)  482-5350 


SPECIAL  DIBCOVERY  MASTER 


The  Honorable  Harvey  B.  Rubenstein 
Special  Discovery  Master 
824  Market  Street,  Suite  901 
Wilmington,  DE   19801 
Phone  #:     (302)  658-4101 
Telecopy  t:    (302)  888-1588 


*Lead  Counsel 
"Major  Party  Involvement 
***Co-Counsel 


July  12,  1993 


275 


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SUSAN  S     RAI 

ATTORNEY   AT   LAW 

20  COW  LANE       KINGS  POINT     NEW  YORK    I  1024 

516    466-2364 


February  10,  1994 


Senator  Patrick  J.  Leahy 

SR  433  Russell  Senate  Office  Building 

Washington,  D.C.  20510-4502 

Dear  Senator  Leahy: 

For  the  past  five  years  I  have  been  a  trustee  of  Marlboro 
Music  School  and  Festival,  an  honor  I  share  with  several 
distinguished  citizens  of  your  state,  including  the  dean  of  the 
University  of  Vermont  Law  School.  The  extraordinary  teaching  and 
performances  which  occur  in  Marlboro  have  been  part  of  my  life  for 
itiore  than  20  years. 

For  even  longer  -  30  years  to  be  exact  -  I  have  been  a  close 
friend  of  Lois  Schiffer,  who  has  been  nominated  for  the  position  of 
Assistant  Attorney  General  for  the  Environment  and  Natural 
Resources  Division. 

Lois  is  a  person  of  extraordinary  integrity,  intelligence, 
energy,  and  common  sense.  She  has  wide  experience  in  environmental 
matters.  In  my  opinion,  she  is  exceptionally  well-suited  to  join 
the  Justice  Department  in  the  position  for  which  she  is  a  candi- 
date. 


Sincerely, 


S\. 


b  •  }<a.\ 


Susan  S.  Rai 


291 


/AX  TO:        SENATOR  LEAHY  202/224-3595 

FROM:  PATRICK  PARENTEAU,  VERMONT  LAW  SCHOOL 


February  15,  1994 


The  Honorable  Patrick  I.  Leahy 
433  Russell  Senate  Bldg. 
Washington,  D.C.   20510 

Dear  Senator  Leahy: 

I  am  writing  to  express  ray  strong  support  for  Lois  J.  Schiffer,  President  Clinton's 
nominee  to  be  Assistant  Attorney  General  of  the  Environment  and  Natural  Resources 
Division  at  die  Department  of  Justice.    As  you  know,  diis  Division  has  the  major 
responsibility  for  enforcing  the  nation's  environmental  laws  and  for  vindicating  the 
environmental  policies  of  the  Federal  Government.    It  is  one  of  the  most  important  and 
challenging  positions  in  government,  and  it  demands  the  highest  standards  of  professional 
competence  and  integrity. 

Having  known  Lois  Schiffer  for  over  ten  years,  I  can  say  with  confidence  that  she 
measures  up  to  the  job  in  every  way.    Not  only  is  Lois  a  fine  lawyer,  a  skilled  litigator,  and 
a  proven  manager,  but  she  also  possesses  the  kind  of  personal  characteristics  and  values  that 
make  her  an  exemplary  guardian  of  the  public  trust.    Lois  knows  both  the  legal  process  and 
the  process  of  governing.   She  is  a  leader  and  a  problem  solver.    I  believe  she  would  make 
an  outstanding  choice  to  head  the  Environmental  Division,  and  1  hope  you  will  actively 
support  her  confirmation  in  your  role  on  the  Judiciary  Committee. 

Please  let  me  know  if  I  can  provide  any  additional  information. 

Sincerely, 


Patrick  A.  Parenteau 

Director 

Environmental  Law  Center 


292 


Douglas  M.  Costle 

Rural  Route  #2 

P.O.  Box  480 

Woodstock,  Vermont  05091 


February  16,  1994 


The  Honorable  Patrick  J.  Leahy 
United  States  Senate 
433  Russell  Buiktfng 
Washington  D.C.  Z051 

DearS 

As  former  Dean  of  the  Vermont  Law  School  and  former  Administrator  of 
the  Environmental  Protection  Agency,  I  am  writing  to  express  my  strong  support  of  Lois  J. 
Schiffer,  President  Clinton's  nominee  to  be  Assistant  Attorney  General  of  the  Environment 
and  Natural  Resources  Division  at  the  Department  of  Justice. 

Lois  has  broad  experience  in  environmental  law,  litigation,  negotiation  and 
management.  Her  experience  encompasses  a  successful  career  both  in  the  Division  she  has 
been  nominated  to  head  and  also  in  private  practice.  In  an  era  where  the  problems  of 
litigation  concerning  hazardous  waste  have  become  a  concern,  she  is  particularly  well 
equipped.  She  has  handled  several  major,  complex  cases  in  that  arena,  both  on  behalf  of 
the  government  and  for  private  parties. 

1  know  Lois  and  I  am  familiar  with  her  outstanding  professional  reputation, 
both  in  the  private  and  public  sectors.  Lois  is  a  fine  person  and  has  both  the  qualities  and 
environmental  law  experience  that  make  her  well  suited  to  fill  the  Assistant  Attorney 
General  position.  She  is  very  energetic  and  at  the  very  moment  in  her  career  when  she  can 
be  expected  to  contribute  her  very  best  to  the  position.  The  Nation  would-be  well  served  to 
have  Lois  confirmed  as  the  head  of  the  Envirorwnent  and  Natural  Re>o1jrces  Division. 


cc:  Lois  J.  Schiffer 


293 


United  States  Department  of  the  Interior     Sbca 


FISH  AND  WILDLIFE  SERVICE 
Washington,  DC.  20240 


FEB  2  8  1994 


The  Honorable  Patrick  J.  Leahy 
United  States  Senate 
Washington,  D.C.   20510 

Dear  Senator  Leahy: 

I  am  writing  to  express  my  support  for  Lois  J.  Schiffer,  President 
Clinton's  nominee  to  be  Assistant  Attorney  General  of  the 
Environment  and  Natural  Resources  Division  at  the  Department  of 
Justice . 

Through  my  work  at  the  Department  of  the  Interior,  I  am  familiar 
with  Lois'  outstanding  professional  reputation.  Her  extensive 
environmental  law  background  and  commitment  to  public  service  make 
her  well  suited  to  handle  the  important  issues  confronting  the 
Environment  Division.  I  look  forward  to  seeing  her  confirmed  as 
Assistant  Attorney  General. 


Best  Regards, 


Mollie  H.  Beattie 
Director 


294 


lliance  for  Justice)    American  Rivers       Defenders  of  Wildlife 
EnvlHinwynidt  Delense  Fund      Friends  of  the  Earth      League  of 
Conservation  Voters      National  Audubon  Society      National 
Parks  &  Conservation  Association      National  Trust  for  Historic 
Preservation      Native  American  Rights  Fund      Natural  Resources 
Defense  Council      Physicians  for  Social  Responsibility      Sierra 
Club      Sierra  Club  Legal  Defense  Fund      Union  of  Concerned 
Scientists        World  Wildlife  Fund 


July  1,1994 


The  Honorable  Joseph  R.  Biden 

Chairman 

Senate  Judiciary  Committee 

224  Dirksen  Building 

1st  &C  Streets,  NE 

Washington,  DC  20510 


Dear  Chairman  Biden: 


We  are  writing  to  express  our  strong  support  for  the  nomination  of  Lois  Schiffer 
to  be  Assistant  Attorney  General  for  the  Environment  and  Natural  Resources 
Division  of  the  U.S.  Department  of  Justice,  and  to  urge  the  Committee  to 
expeditiously  act  on  her  nomination  with  a  favorable  recommendation  to  the  full 
Senate. 

Ms.  Schiffer  is  a  highly  respected  attorney  with  a  broad  range  of  experience  in 
government  and  in  private  and  public  interest  law  practice.  She  will  bring  to  this 
position  a  firm  grasp  of  the  complexities  of  environmental  and  natural  resource 
issues  and  the  need  for  fair  and  effective  enforcement  of  the  law. 

We  believe  it  should  be  a  priority  for  the  Committee  to  act  on  this  nomination. 
This  is  one  of  the  few  positions  at  the  level  of  Assistant  Attorney  General  in  the  new 
Administration  that  lacks  a  Senate-confirmed  head.  Moreover,  the  Division  has 
been  without  a  Senate-confirmed  head  for  over  three  years,  seriously  undermining 
the  Division's  ability  to  carry  out  its  important  work. 

Thank  you  for  considering  our  views  on  the  importance  of  moving  forward  with 
Ms.  Set-lifter's  nomination. 


295 


Sincerely  yours, 


Kj}*- 


Gu 


Nan  Aron 

Executive  Director 
Alliance  for  Justice 


Kevin  Coyle 
Executive  Director 
American  Rivers 


-HZfTfarr 


Fred  D.  Krup 
Executive  Director 
Environmental  Defense  Fund 


'6* 


Peter  A.  A.  Berle 
President  &  CEO 
National  Audubon  Society 


Richard  Moe 
President 

National  Trust  for  Historic 
Preservation 


Julia  A.  Moore 
Executive  Director 
Physicians  for  Social 


ifc^O  f<& 


Howard  Ris 

Executive  Director 

Union  of  Concerned  Scientists 


jfot*" 


£Ua*VX+' 


John  Adams 

Executive  Director 

Natural  Resource  Defense  Council 


Carl  Pope 

Executive  Director 
Sierra  Club 


{irtAtu  S.  IwJiuL 


Kathryn  Fuller 

President 

World  Wildlife  Fund 


296 


James  Wyerman 

Vice  President  for  Program 

Defenders  for  Wildlife 

Jim  Maddy 
President 
League  of  Conservation  Voters 

Jane  Perkins 

President 

Friends  of  the  Earth 


Victor  Sher 

President 

Sierra  Club  Legal  Defense  Fund 


/4*~£±CL*JL 


John  Ecohawk 

Executive  Director 

Native  American  Rights  Fund 


Paul  C.  Pritchard 
President 

National  Parks  &  Conservation 
Association 


297 


M 


?h    JUL  18   PH  3  5  ^Hf 

THE  WILDERNESS  SOCIETY 


G   JON  ROUSH 
President 


July  14,  1994 


The  Honorable  Joseph  R.  Biden 
Chairman,  Senate  Judiciary  Committee 
224  Dirksen  Senate  Office  Building 
Washington,  D.C.  20510 

Dear  Mr.  Chairman: 

I  am  writing  to  express  the  strong  support  of  The  Wilderness  Society  for  the 
nomination  of  Lois  Schiffer  as  Assistant  Attorney  General  for  the  Environment  and 
Natural  Resources  Division  of  the  U.S.  Department  of  Justice. 

Ms.  Schiffer  has  an  extensive  background  in  both  the  private  sector  and  in 
previous  government  experience.   She  will  provide  a  strong  and  forceful  voice  on 
environmental  and  natural  resources  issues  and  we  look  forward  to  having  her  fully 
assume  the  responsibilities  of  this  position. 

We  were  pleased  to  hear  that  the  committee  has  scheduled  hearings  on  her 
nomination  later  this  month.  We  commend  you  for  moving  forward  and  urge  a  favorable 
recommendation  to  the  full  Senate. 


Sincerely, 


(Z^-^ 


900  SEVENTEENTH  STREET.  NU'.  WASHINGTON,  DC    20006-2596 
(202)  833-2300 


Printed  on  recycled  paper 


298 


jg  Washington 


WASHINGTON  L'XIMRSTTY-  IX-  ST-  LOUIS 

School  of  Law 


August  3,  1994 


The  Honorable  Joseph  R.  Biden 

Chair,  Senate  Committee  on  the  Judiciary 

United  States  Senate 

224  Dirksen  Senate  Office  Building 

Washington.  D.C.   20510 

Dear  Senator  Biden: 

I  am  writing  to  express  my  support  for  the  nomination  of  Lois  J.  Schiffer  to  be  the 
Assistant  Attorney  General  for  the  Environment  and  Natural  Resources  Division  of  the 
United  States  Department  of  Justice.    I  teach  environmental  and  natural  resources  law,  have 
litigated  environmental  cases  on  behalf  of  the  United  States  as  a  lawyer  in  the  Environment 
Division  and  in  the  Solicitor  General's  Office  of  the  Justice  Department,  and  have  written 
extensively  on  environmental  law  issues.    I  also  serve  on  the  Environmental  Defense  Fund's 
litigation  review  committee  and  have  represented  EDF  and  other  environmental  public 
interest  organizations  in  litigation.  r 

I  know  quite  well  both  Ms.  Schiffer  and  the  skills  essential  to  the  position  for  which 
she  has  been  nominated.   I  fust  became  acquainted  with  Ms.  Schiffer  in  1979,  when  I  joined 
the  Justice  Department's  Environment  Division  (then  known  as  the  Land  and  Natural 
Resources  Division)  as  a  trial  attorney;  Ms.  Schiffer  was  then  the  Chief  of  the  General 
Litigation  Section  of  the  Environment  Division.   More  recently,  I  worked  closely  with  her 
following  President  Clinton's  election  in  November  1992,  when  we  served  together  on  the 
Justice  Department  Transition  Team  and.  in  that  capacity,  we  prepared  a  formal  report  on 
the  Environment  Division. 

I  have  also  had  the  opportunity  throughout  my  career  to  observe  the  workings  of  the 
Environment  Division.    In  addition  to  the  four  years  I  worked  for  the  Division  from  1979  to 
1983.  under  both  Democratic  and  Republican  Administrations,  I  worked  closely  with  the 
Division  from  1986  to  1989  when  I  served  as  an  Assistant  to  the  Solicitor  General  for  the 
Justice  Department.    Finally,  my  academic  writings  have  prompted  me  to  consider  the 
Division's  work,  as  has  litigation  I  have  since  done  on  behalf  of  environmental  public  interest 
groups  and  state  and  local  governments,  bom  with  and  against  Environment  Division 
lawyers. 


WiLihin^tion  I'ivivitmi} 

Cljmpus  lio\  ii-'u 

One  Brooking  Drive 

si    Ijiuis   M un  i.M*nHH')'l 

I  K\  ,,  'M^  (,,1111 

Trlii  ■•pur   ithi'iW  <t>* 


299 


The  Honorable  Joseph  R.  Biden  -2- 


Based  on  my  knowledge  of  Ms.  Schiffer  and  of  the  Division,  I  am  confident  that  she 
will  be  an  outstanding  Assistant  Attorney  General.    Indeed,  Ms.  Schiffer  combines 
wonderfully  the  talents  and  perspectives  necessary  in  a  successful  Assistant  Attorney  General 
for  the  Environment  Division.   As  a  result  of  years  of  practicing  environmental  law  -  on 
behalf  of  the  government,  industry,  and  environmental  organizations  —  and  teaching 
environmental  law  as  a  law  professor,  Ms.  Schiffer  is  truly  an  expert  on  this  nation's 
environmental  protection  laws.    Few  can  credibly  make  that  claim,  given  the  sheer  volume 
and  complexity  of  those  laws.   She  also  has  thought  about  those  laws  from  very  different 
vantage  points,  including  the  regulator,  the  regulated,  and  the  academic.   Such  a  background 
is  great  virtue  at  the  Justice  Department,  where  one  must  simultaneously  enforce  the  laws, 
defend  the  government  against  claims  that  it  is  itself  violating  the  laws,  and  work  with  client 
agencies  and  Congress  on  improving  existing  statutory  programs.   Because  of  the  great 
emotions  surrounding  environmental  protection  -  both  from  those  desiring  the  benefits  and 
those  incurring  the  costs  -  the  head  of  the  Environment  Division  "must  undertake  these 
difficult,  sometimes  seemingly  conflicting  tasks,  under  intense  public  scrutiny  and  constant 
second-guessing. 

It  is  only  the  rare  individual  that  has  the  knowledge,  stature,  and,  indeed,  stamina 
necessary  for  the  job.   Lois  J.  Schiffer  is  such  a  person.   And,  I  hope  for  that  reason,  that 
the  Senate  Judiciary  Committee  will  act  expeditiously  and  favorably  on  her  nomination. 

Thank  you  for  providing  me  with  this  opportunity  to  write  on  her  behalf. 


I 

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August  5,  1994 


Hand  Delivered 

Senator  Joseph  R.  Biden,  Jr. 

Chairman 

Committee  on  the  Judiciary 

Attention:   Nominations 

SD-224  Dirksen  Senate  Office  Building 

Washington,  D.C.   20510-6275 

Re:   Lois  J.  Schiffer 

Dear  Mr.  Chairman: 

I  am  writing  in  support  of  the  confirmation  of  Lois  J. 
Schiffer  as  Assistant  Attorney  General  for  the  Environment  & 
Natural  Resources  Division  of  the  Department  of  Justice.  When  I 
served  in  that  position  during  the  Carter  administration,  I 
recruited  Lois  for  the  position  of  Section  Chief  of  the 
Division's  General  Litigation  Section.  Lois  served  as  Section 
Chief  with  great  distinction,  and  I  was  thoroughly  impressed  by 
the  high  quality  of  her  work.  Lois  is  an  outstanding  lawyer,  a 
person  of  great  integrity  and  fairness,  and  an  accomplished 
administrator.  Lois  is  a  very  hard  worker,  knowledgeable  in  the 
field  of  environmental  law,  and  the  straightest  of  straight 
arrows . 

Since  our  time  together  at  Justice,  I  have  continued  to 
follow  her  career  and  have  seen  her  occasionally  in  social 
settings.  I  have  learned  over  the  years  that  Lois  is  very 
interested  in  the  environment  and  cares  very  much  about 
practicing  and  advancing  environmental  protection  values. 

In  my  opinion,  Lois  is  very  well  suited  for  the 
position  of  AAG  for  "Lands"  (as  its  alumni  often  call  the 
Division) ,  and  I  believe  she  will  compile  an  outstanding  record 
during  her  term  which  we  will  all  be  proud  of. 


Very  truly  yours, 
/yames  W.  Moorman 


301 


ENVIRONMENTAL 
DEFENSE  FUND 


Capital  Office 

1875  Connecticut  Ave.,  N.W. 

Washington,  DC  20009 

(202)  387-3500 

Fat:  202-234-6049 


-.ugust 


1994 


Honorable  Joseph  Biden 

Chairman 

Committee  on  the  Judiciary 

United  States  Senate 

Senate  Dirksen  Office  Building 

Washington,  D.C.   20510-6275 

Dear  Chairman  Biden: 

I  am  writing  to  offer  the  Committee  my  strong  endorsement 
of  Lois  J.  Schiffer  to  be  Assistant  Attorney  General  for  the 
Environment  and  Natural  Resources  Division  of  the  U.S. 

Department  of  Justice. 

As  legislative  director  for  the  Environmental  Defense  Fund, 
I  am  personally  familiar  with  Ms.  Schiffer 's  work  for  the 
Department  cf  Justice.  I  have  worked  with  Ms.  Schiffer  most 
recently  on  the  Administration's  pending  bill  to  reauthorize 
and  reform  the  federal  Superfund  program,  in  which  the 
Department  of  Justice  has  played  a  crucial  role.   In  all  of  her 
work,  I  have  know  Ms.  Schiffer  to  be  a  strong  and  effective 
advocate  for  environmental  protection.   She  has  a  balanced 
understanding  of  the  nuances  of  environmental  issues, 
reflecting  a  breadth  cf  experience  both  as  an  attorney  and  an 
environmentalist.   Most  importantly,  in  all  of  our  discussions, 
Ms.  Schiffer  has  exhibited  the  forthrightness  and  professional 
integrity  that  are  essential  to  those  holding  this  position  of 
public  trust. 

I  appreciate  the  opportunity  to  present  my  views  and  urge 
the  Committee  and  the  Senate  to  take  prompt  action  to  confirm 
Ms.  Schiffer  as  Assistant  Attorney  General. 


Sincere 


iilliam  JT  Roberts 
Legislative  Director 


National  Headquarters 


257  Park  Avenue  South 
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The  Honorable  Joseph  R.  Biden,  Jr. 
Chairman,  Senate  Judiciary  Commission 
SR-221  Russell  Senate  Office  Building 
Washington,  DC  20510-0802 


Dear  Senator  Biden: 


On  Tuesday  next,  your  Committee  has  scheduled  the  confirmation  hearing  for  Lois 
Schiffer,  nominee  for  Assistant  Attorney  General  of  the  Environment  and  Natural 
Resources  Division  at  the  Department  of  Justice.  As  Assistant  Attorney  General  of  this 
Division  from  1981-  1983, 1  worked  closely  with  Ms.  Schiffer  on  a  number  of  sensitive  legal 
matters  pending  in  the  Division  and  I  formed  a  high  opinion  of  her  dedication  to  protection 
of  the  environment  and  the  nation's  public  lands  and  natural  resources.  Because  I  found 
her  to  have  an  outstanding  analytical  ability  and  be  committed  to  a  balanced  review  of 
complex  issues,  I  asked  her  to  work  on  various  difficult  matters  and  valued  the  clear, 
thoughtful  advice  she  gave.  I  found  Lois  always  to  be  fair  and  a  person  of  the  highest 
integrity. 

If  my  schedule  were  otherwise.  I  would  ask  to  appear  before  the  Committee  in 
support  of  this  nomination;  instead  I  ask  that  you  consider  favorably  my  recommendation 
that  Ms.  Schiffer  be  promptly  confirmed.  The  Division  has  been  without  an  Assistant 
Attorney  General  confirmed  by  the  Senate  for  three  years  and  Ms.  Schiffer  will  serve  in  this 
post  ably,  with  distinction. 

Thank  you  for  your  consideration  of  my  comments. 

Yours  very  truly, 


CixjuoJL  &l*J*x*^_ 


Carol  E.  Dinkins 


303 


BRUCE  J    TERRIS 
CAROLYN  SMITH  PRAVLIK 
MONICA  WAGNER 
KATHLEEN  L    MILLIAN 


Terris.  Pravlik  a  Wagner 

1121    1  2th  STREET,  n  w 

WASHINGTON.  DC    2O0O5-4632 

I202)  682  2IOO 

MCI/TELEX  202  267  554  I 

FAX    202  289  6795 


August   18,    1994 


ROBERT  D    PARRISH 
MARK  V    OUGAN 
ROCHELLE  BOBROFF 
ZOENA  NEMECKOVA- 
ERIC  A    BILSKY 
SCOTT  M    DUBIN- 
J    MARTIN  WAGNER 
SARAH  POSNER 
STEVEN  SANTARSIERO* 


•not  *om>ttco  to  oc   e*« 


TESTIMONY  OF 
BRUCE  J.  TERRIS,  PARTNER,  TERRIS,  PRAVLIK  &  WAGNER 

BEFORE  THE 

COMMITTEE  ON  THE  JUDICIARY  OF  THE  U.S.  SENATE 

REGARDING  THE  NOMINATION  OF  MS.  LOIS  SCHIFFER  FOR 

THE  POST  OF  ASSISTANT  ATTORNEY  GENERAL  OF  THE  ENVIRONMENT 

AND  NATURAL  RESOURCES  DIVISION  OF  THE  DEPARTMENT  OF  JUSTICE 

I  would  like  to  thank  the  Chairman  and  Members  of  the 
Committee  for  accepting  the  following  testimony  regarding  the 
nomination  of  Lois  Schiffer  for  the  post  of  Assistant  Attorney 
General  of  the  Environment  and  Natural  Resources  Division  of  the 
Department  of  Justice. 

I  have  practiced  environmental  law  for  over  20  years.  Over 
the  last  11  years,  my  firm  has  brought  over  75  citizen  suits  to 
enforce  the  Clean  Water  Act  (CWA)  against  private  and  government 
dischargers.  These  suits  have  resulted  in  over  $35  million  in 
penalties  being  paid  to  the  federal  treasury.  I  have  attached  a 
copy  of  my  firm's  resume  (attachment  1). 

My  concerns  regarding  Ms.  Schiffer' s  nomination  relate  to 
actions  of  the  Environment  and  Natural  Resources  Division  during 
Ms.  Schiffer' s  tenure  as  Deputy  Attorney  General  and  more  recently 
as  acting  Assistant  Attorney  General.  I  have  two  related  concerns. 
First,  the  Department,  in  its  role  of  defending  the  federal 
government  for  its  violations  of  the  CWA,  has  taken  positions  in 
direct  conflict  with  the  positions  it  takes  as  a  prosecutor  of 
private  industry  for  violations  of  the  CWA.  Second,  I  am 
concerned  that  federal  agencies  such  as  the  Departments  of  Energy 
and  Defense,  which  are  the  most  significant  polluters  in  the 
Nation,  have  had  much  too  large  a  role  in  decisions  affecting 
environmental  policy. 

I  should  note  that  while  these  concerns  are  very  serious,  they 
relate  to  a  fraction  of  Ms.  Schiffer' s  management  of  the 
Environment  and  Natural  Resources  Division.  I  do  not  have  adequate 
information  as  to  her  other  activities  which  would  be  necessary  for 
me  to  take  a  position  as  to  whether  she  should  be  confirmed.  I 
submit  these  comments  in  order  to  promote  a  discussion  of  policy 
decisions  that  I  consider  to  be  inconsistent  with  the  public 
interest. 


•**'l«  <M>  M%  Mii'tif  0  ».»*•  *m*   104  ^POU  i— ■  *■•*! 


304 


THE  DEPARTMENT  OF  JUSTICE  CURRENTLY  ADVOCATES  STRICTER 

ENFORCEMENT  OF  THE  CLEAN  WATER  ACT  AGAINST  PRIVATE  POLLUTERS 

THAN  AGAINST  THE  GOVERNMENT 

The  Department  of  Justice  does  not  follow  a  common  policy  in 
the  suits  it  brings  to  enforce  the  CWA  against  private  polluters 
and  in  its  defense  of  federal  polluters  who  are  defendants  in 
citizen  suits  brought  under  the  Act.  In  its  defense  of  government 
agencies,  the  Department  frequently  makes  arguments  that  directly 
conflict  with  the  positions  it  has  taken  as  a  prosecutor.  The 
result  is  that  the  Department  is,  in  effect,  advocating  stricter 
enforcement  of  the  CWA  against  private  polluters  than  against  the 
government . 

For  example,  in  a  case  in  which  my  firm  is  representing 
several  environmental  groups  in  a  CWA  citizen  suit  against  the 
Department  of  Energy  Facility  in  Oak  Ridge,  Tennessee  (Friends  of 
the  Earth  v.  O'Learv.  E.D.  Tenn.,  CIV-3-92-036,  (hereafter,  the 
"Oak  Ridge  Litigation")),  the  Department  of  Justice  has  made  the 
following  arguments: 

■  Defendants  need  not  achieve  100  percent  compliance 
with  their  CWA  permits;  rather,  a  good  faith  effort  to 
attain  100  percent  compliance  is  sufficient. 

■  An  oral  or  written  statement  from  the  Tennessee 
Department  of  Energy  and  Conservation  (TDEC)  is 
sufficient  to  modify  defendants'  permits. 

■  Although  defendants  continue  to  violate  the  discharge 
limitations  of  their  permits,  plaintiffs'  complaint  is 
moot  since  defendants  have  taken  corrective  action 
since  plaintiffs  filed  their  complaint. 

The  Department,  as  a  prosecutor,  has  rejected  these  same 
arguments  in  CWA  cases  against  private  polluters.  For  example, 
with  regard  to  permit  compliance,  the  Department  has  long 
successfully  argued  that  100  percent  compliance  is  required.  See 
American  Petroleum  Institute  v.  E.P.A..  540  F.2d  1023,  1036  (10th 
Cir.  1976);  United  States  v.  Amoco  Oil  Co..  580  F.Supp.  1042,  1050 
(W.D.  Mo.  1984) . 

Similarly,  the  Department  has  argued,  again  successfully,  that 
informal,  unilateral  actions  such  as  letters  from  state  regulatory 
authorities  like  TDEC  are  insufficient  to  modify  a  permit.  See 
United  States  v.  Ohio  Edison  Co..  725  F.  Supp.  928,  933  (N.D.  Ohio 
1989) ;  United  States  v.  Metropolitan  District  Commission.  23  ERC 
1350,  1355  (D.  Mass.  1985). 


305 


The  Department  has  also  argued  that  a  defendant  bears  an 
extremely  heavy  burden  in  showing  mootness.  As  amicus  curiae  in 
Gwaltney  v.  Chesapeake  Bay  Foundation.  484  U.S.  49  (1987),  the 
Department  argued  that  defendant,  although  then  in  full  compliance 
with  its  CWA  permit,  did  not  establish  mootness  where  it  did  not 
raise  its  claim  of  full  compliance  until  nearly  one  year  after  the 
complaint  was  filed.  In  contrast,  in  the  Oak  Ridge  Litigation, 
even  though  defendants  have'  ongoing  violations,  the  Department  has 
claimed  mootness. 

In  addition  to  taking  positions  in  the  Oak  Ridge  Litigation 
which  it  has  rejected  in  its  own  enforcement  cases,  the  Department 
has  taken  positions  which  are  inconsistent  with  EPA  policy.  Such 
positions  include  the  following: 

■  A  single  sample  result  cannot  be  used  to  determine 
compliance  with  a  weekly,  monthly  or  quarterly  average 
limit. 

■  Defendants'  violations  of  the  discharge  limitations  of 
their  permits,  including  fish  kills,  have  not  resulted 
in  irreparable  harm. 

These  positions  are  inconsistent  with  EPA' s  position.  For 
example,  the  Department's  argument  that  a  single  sample  cannot  be 
used  to  determine  an  average  limit  would  mean  that  a  defendant 
would  never  report  an  average  for  a  given  time  period  whenever  its 
CWA  permit  only  required  one  sample  over  that  period.  This 
position  is  in  conflict  with  EPA's  NPDES  Self -Monitoring  System 
User  Guide  (January  1985) .  In  the  instructions  for  completion  of 
discharge  monitoring  reports,  the  guide  states:  "'Average'  is 
normally  arithmetic  average  (geometric  average  for  bacterial 
parameters)  of  all  sample  measurements  for  each  parameter  obtained 
during  the  monitoring  period."  Id.. ,  p.  14.  Therefore,  if  a  single 
sample  is  taken  during  a  month- long  monitoring  period,  that  sample 
would  be  the  monthly  average. k/ 

The  Department's  contention  that  the  pollutants  which 
defendants  discharged  in  violation  of  their  NPDES  permit  limits 
(e.g. .  chromium,  zinc,  PCBs,  and  copper)  do  not  cause  irreparable 
harm  also  directly  contradicts  EPA's  view  of  the  serious  harm 
caused  by  these  pollutants.  See  52  Fed.  Reg.  12889  (April  17, 
1987);  EPA,  Quality  Criteria  for  Water  (July  1986). 

While  these  positions  were  originally  taken  in  briefs  filed  by 
the  Department  of  Justice  during  the  prior  Administration,  the 
Environment  and  Natural  Resources  Division  has  continued  to  press 


1/  The  courts  do  not  accept  this  illogical  result  either.  See, 
e.g.,  Natural  Res.  Defense  Coun.  v.  Outboard  Marine  Corp..  692  F. 
Supp.  801,  820-821  (N.D.  111.  1988). 


306 


these  arguments  in  settlement  discussions  which  have  occurred  since 
Ms.  Schiffer  has  headed  the  Division.  Moreover,  the  Department  of 
Justice  has  insisted  on  provisions  for  settlement  of  the  Oak  Ridge 
Litigation  which  it  never  would  have  accepted  in  consent  decrees 
with  private  polluters.  For  example,  it  opposed  inclusion  of  a 
provision  accepting  the  jurisdiction  of  the  court  in  the  consent 
decree  relating  to  settlement  of  the  Oak  Ridge  Litigation. 
However,  it  invariably  includes  such  a  provision  in  its  consent 
decrees  with  private  polluters.  Considerably  more  important,  the 
Department  of  Justice  insisted  on  the  inclusion  of  provisions  in 
the  consent  decree  relating  to  the  Oak  Ridge  Litigation  which  allow 
the  Department  of  Energy  to  commit  a  limited  number  of  violations 
of  its  permits  rather  than  requiring  full  compliance  with  the 
permits.2' 

If  the  Department  is  successful  in  making  arguments  which 
weaken  environmental  laws  in  the  courts,  the  result  will  be  to  make 
it  more  difficult  to  enforce  the  law  against  both  governmental  and 
private  polluters.  Even  more  important,  the  Department's 
inconsistency  undermines  the  integrity  of  the  federal  government's 
enforcement  of  environmental  laws.  It  is  simply  hypocrisy  for  the 
same  federal  government  to  demand  substantially  stricter  compliance 
with  federal  environmental  laws  from  private  polluters  than  from 
its  own  facilities.  There  is  no  possible  reason  why  environmental 
laws  should  be  enforced  more  strictly  against  small  businesses,  for 
example,  then  against  the  Department  of  Energy.  Indeed,  if 
anything,  federal  environmental  laws  should  be  enforced  more 
strictly  against  the  federal  government  since  it  should  be  setting 
an  example  for  compliance. 

II 

THE  DEPARTMENT  OF  JUSTICE  IS  ALLOWING  FEDERAL  AGENCIES 
THAT  ARE  THE  LARGEST  POLLUTERS  IN  THE  COUNTRY  FAR  TOO 
MUCH  INFLUENCE  IN  DETERMINING  THE  GOVERNMENT'S 
ENVIRONMENTAL  POLICIES 

I  am  also  concerned  that  government  agencies  such  as  the 
Department  of  Energy  and  Defense  seem  to  have  disproportionate 
influence  in  decisions  affecting  environmental  policy.  These 
departments,  as  the  biggest  polluters  in  the  Nation,  should  not  be 
in  a  position  to  have  significant  influence  over  environmental 
policy  at  the  Department  of  Justice. 


2/  I  personally  brought  the  Department's  handling  of  the  Oak  Ridge 
litigation  to  the  attention  of  Ms.  Schiffer  in  a  December  3,  1993, 
letter  (attachment  2) .  The  letter  contains  specific  citations  to 
government  briefs  and  depositions  in  which  the  above  discussed 
positions  were  taken.  Ms.  Schiffer  never  replied  to  the  letter. 
The  briefs  and  depositions  referred  to  are  available  to  the 
Committee  upon  request. 


307 


For  example,  the  District  Court  for  the  District  of  New  Jersey 
recently  held  that,  under  Section  505(b)  of  the  Water  Act  and  EPA's 
regulations  regarding  the  giving  of  notice  by  citizen-plaintiffs 
(40  C.F.R.  135(a)),  the  court  did  not  have  subject  matter 
jurisdiction  over  pre-complaint  violations  which  were  not 
specifically  listed  in  plaintiffs'  60-day  notice  letter  or  over 
post -complaint  violations  which  were  not  of  the  same  type  as  those 
included  in  the  notice  letter*  Public  Interest  Research  Group  of 
New  Jersey.  Inc.  v.  Hercules  Inc..  830  F.  Supp.  1525,  1528-1535 
(D.N.J.  1993)  .  The  court  therefore  dismissed  many  discharge 
violations  and  all  the  monitoring,  reporting  and  recordkeeping 
violations.  Ibid.*'  Plaintiffs  successfully  moved  for 
interlocutory  appeal  to  the  Court  of  Appeals  for  the  Third  Circuit . 

After  the  briefing  of  the  appeal,47  the  court  of  appeals  asked 
EPA  to  file  an  amicus  curiae  brief  regarding  the  agency's 
interpretation  of  its  citizen  notice  regulations  (attachment  4) . 
40  C.F.R.  135.3.  The  Department  of  Justice,  ignoring  the  fact  that 
the  court  asked  for  EPA's  position  on  the  regulations,  told  the 
court  that  it  needed  to  coordinate  the  brief  with  the  Departments 
of  Defense  and  Energy  because  those  agencies  owned  facilities  that 
were  subject  to  citizen  suits.  Letter,  Peter  Steenland,  Chief, 
Appellate  Section,  Environment  and  Natural  Resources  Division, 


3_/  The  district  court  decision  in  Hercules  will  have  extremely 
serious  consequences  on  the  effectiveness  of  citizen  suits  if  it  is 
not  reversed  on  appeal.  Monitoring,  reporting  and  recordkeeping 
violations  are  generally  only  discoverable  after  suit  has  been 
brought  because  the  discharge  monitoring  reports  filed  by 
dischargers  with  EPA  and  the  states  generally  do  not  include  the 
information  necessary  to  determine  these  violations.  These 
violations  can  generally  Only  be  ascertained  from  the  discharger's 
laboratory  reports,  which  can  only  be  obtained  after  suit  has  been 
brought  and  discovery  initiated.  Moreover,  the  laboratory  reports 
also  often  disclose  additional  discharge  violations  not  set  forth 
in  the  discharge  monitoring  reports.  Based  on  the  Hercules 
decision,  the  only  way  citizens  will  be  able  to  enforce  the  Act  as 
to  monitoring  and  reporting  violations,  and  many  discharge 
violations,  is  to  bring  suit,  obtain  discovery,  file  a  new  notice 
letter,  and  then  file  a  new  or  amended  complaint  as  to  the  newly 
discovered  violations.  The  result  will  be  to  complicate,  and  delay 
significantly,  citizen  suit  litigation  as  well  as  to  prevent  many 
violations  from  ever  being  penalized  because  of  the  running  of  the 
statute  of  limitations. 

4/  Prior  to  the  briefing  of  the  appeal,  I  personally  wrote  Ms. 
Schiffer,  asking  that  the  Department  of  Justice  file  an  amicus 
curiae  brief  in  the  court  of  appeals  supporting  the  position  of  the 
citizen-plaintiffs  because  of  the  great  importance  of  the  district 
court's  decision  to  citizen  suits  under  the  Water  Act  (attachment 
3)  . 


308 


Department  of  Justice  to  P.  Douglas  Sisk,  Clerk,  Unites  States 
Court  of  Appeals  for  the  Third  Circuit,  June  27,  1994  (attachment 
5)  .  The  amicus  brief  eventually  filed  by  the  Justice  Department 
contains  not  a  single  word  setting  forth  the  position  of  EPA 
concerning  the  meaning  of  its  own  regulations.  Instead,  the  brief 
explicitly  states  that  it  is  presenting  an  overall  government 
position  concerning  the  meaning  of  the  regulations,  including  the 
positions  of  the  Departments  .of  Defense  and  Energy,  even  though 
these  two  agencies  had  no  part  in  the  promulgation  of  the 
regulations.  As  a  result,  the  arguments  in  the  Department  of 
Justice's  brief  were  almost  identical  with  those  of  Hercules,  Inc., 
the  defendant.  See  Brief  for  the  United  States  as  Amicus  Curiae, 
July  7,  1994  (attachuent  6) . 

It  is  seriously  wrong  that  the  biggest  polluters  in  the  Nation 
should  be  in  a  position  to  exert  such  influence  over  environmental 
policy  decisions  by  the  Division  of  the  Department  of  Justice 
mandated  to  enforce  the  federal  environmental  laws.  As  the  result 
of  this  influence,  the  Department  of  Justice,  while  frequently 
paying  lip  service  to  its  support  of  citizen  suits,  is  all  too 
often  taking  positions  that  undermine  the  ability  of  citizens  to 
enforce  environmental  laws. 

The  issues  that  I  have  outlined  are  extremely  important  to 
future  federal  enforcement  of  environmental  laws.  It  is  my  hope 
that  the  Members  of  the  Committee  will  explore  these  issues  with 
Ms.  Schiffer.  It  is  also  my  hope  that  this  discussion  can  move  the 
Nation  toward  a  level  playing  field  where  the  federal  government 
abides  by  the  same  rules  as  private  industry. 


309 


March  1993 

ENVIRONMENTAL,  PRESERVATION,  LAND-USE, 
AND  ZONING  MATTERS  HANDLED  BY 
TERRIS,  PRAVLIK  &  WAGNER 
(formerly  Terris,  Edgecombe,  Hecker  &  Wayne  and 
Terris  &  Sunderland). 

.WATER  QUALITY 

We  have  represented  the  Public  Interest  Research  Group  of 
New  Jersey,  Friends  of  the  Earth,  Sierra  Club,  the  South  Carolina 
Coastal  Conservation  League,  Florida  Public  Interest  Research 
Group,  Pennsylvania  Public  Interest  Research  Group,  New  York 
Public  Interest  Research  Group,  Trout  Unlimited,  the  Foundation 
for  Global  Sustainability,  and  the  Atlantic  States  Legal 
Foundation  in  more  than  75  citizen  suits  brought  under  the  Clean 
Water  Act  to  enforce  industrial  discharge  permits  in  New  Jersey, 
New  York,  South  Carolina,  Tennessee,  Florida,  and  West  Virginia. 
Under  the  Act,  permittees  must  monitor  and  report  their 
discharges  on  a  regular  basis  and  are  strictly  liable  for  any 
violations  of  discharge  limits  and  monitoring  and  reporting 
requirements.   The  suits  request  civil  penalties  for  past  permit 
violations  and  injunctive  relief  to  ensure  future  compliance. 
Suits  have  been  filed  against  industries  which  discharge  directly 
to  navigable  waters  and  which  discharge  indirectly  to  such  waters 
through  municipal  treatment  plants. 

We  have  obtained  court  decisions  on- a  number  of  issues  of 
first  impression  in  citizen  suits  under  the  Act,  including:  (1) 
the  first  decision  awarding  summary  judgment  on  liability  issues 
(SPIRG  v.  Monsanto  Co..  600  F.  Supp.  1479  (D.N.J.  1985));  (2)  the 
first  decision  upholding  the  constitutionality  of  the  citizen 
suit  provisions  of  the  Act  (SPIRG  v.  Monsanto  Co. ,  600  F.  Supp. 
1474  (D.N.J.  1985));  (3)  the  first  decision  holding  that  only 
judicial,  not  administrative,  actions  by  government  agencies  can 
preclude  a  citizen  suit  for  the  same  violations  (Friends  of  the 
Earth  v.  Consolidated  Rail  Corp..  768  F.2d  57  (2d  Cir.  1985)); 
(4)  the  first  decision  granting  a  preliminary  injunction  against 
further  permit  violations  (PIRG  v.  Top  Notch  Metal  Finishing  Co., 
26  ERC  2012  (D.N.J.  1987));  (5)  the  first  decisions  imposing  the 
then  statutory  maximum  civil  penalty  of  $10,000  per  violation 
(SPIRG  v.  Monsanto  Co..  29  ERC  1988  (D.N.J.  1988),  SPIRG  v. 
Hercules.  Inc. ,  29  ERC  1417  (D.N.J.  1989),  PIRG  v.  Powell  Duffryn 
Terminals,  Inc. .  720  F.  Supp.  1158  (1989),  affirmed,  913  F.2d  64 
(3d  Cir.  1990),  certiorari  denied,  111  S.  Ct.  1018  (1991));  (6) 
the  first  decision  imposing  contempt  penalties  for  violation  of  a 
consent  decree  (PIRG  v.  Ferro  Merchandising  Corp. .  26  ERC  1362 
(D.N.J.  1987));  and  (7)  the  first  injunction  obtained  by  citizens 
against  a  federal  facility  for  violations  of  the  Act  (PIRG  v. 
Rice.  774  F.  Supp.  317  (D.N.J.  1991)). 

We  have  been  successful  in  obtaining  relief  against 
federal,  state,  and  municipal  facilities  as  well  as  private 


310 


facilities.   In  addition  to  obtaining  an  injunction  requiring 
compliance  with  the  Act  at  McGuire  Air  Force  Base  (PIRG  v.  Rice. 
supra) ,  we  have  secured  consent  decrees  ensuring  permit 
compliance  at  two  Army  facilities  and  four  state  facilities.   We 
are  currently  litigating  cases  involving  six  additional 
government  facilities,  including  three  facilities  at  the  federal 
government's  massive  nuclear  research  complex  at  Oak  Ridge 
National  Laboratories  in  Tennessee. 

Judgments  for  civil  penalties  and  settlement  payments  in 
these  cases  amount  to  $31  million.   These  include  the  highest 
settlement  in  a  citizen  suit,  PIRG  v.  Witco  Chemical  Corp. 
($10,000,000),  the  two  highest  civil  penalties  ever  imposed  by  a 
court  in  citizen  suits  (PIRG  v.  Powell  Duffryn  Terminals.  Inc. , 
supra  ($4,085,000  after  remand);  SPIRG  v.  Hercules,  Inc..  supra 
($1,680,000)) . 

In  SPIRG  v.  AT&T  Bell  Laboratories.  842  F.2d  1436  (3d  Cir. 
1988),  the  court  held  that  the  community  market  rate,  rather  than 
the  firm's  actual  billing  rate,  was  the  proper  measure  of 
attorneys'  fees  in  such  citizen  suits.   The  court  found  that  the 
firm  "performed  excellent  work"  and  that  its  billing  rates  fell 
"far  short  of  what  the  Terris  firm- could  command  in  the 
marketplace."   Id.  at  1442,  1445. 

In  1991,  Bruce  Terris  testified  before  the  Commissioner  of 
the  New  Jersey  Department  of  Environmental  Protection  and  Energy 
concerning  its  new  penalty  regulations  implementing  the  New 
Jersey  Clean  Water  Enforcement  Act  of  1990.   In  addition,  the 
firm  has  provided  informal  assistance  to  NJDEPE  in  developing 
methods  of  incorporating  into  penalties  the  recovery  of  economic 
benefits  enjoyed  by  polluters  which  delay  implementing  pollution 
control  measures. 

In  Chesapeake  Bay  Foundation  v.  United  States,  we 
represented  citizens  organizations  which  challenged  the  granting 
of  a  state-issued  NPDES  permit  for  a  refinery  in  the  Hampton 
Roads  area  of  Virginia.   The  grounds  included  the  failure  to 
prepare  an  environmental  impact  statement,  to  assure  that  water 
quality  standards  would  be  met,  and  to  comply  with  procedural 
requirements  of  the  Clean  Water  Act.   The  district  court  held 
that  an  environmental  impact  statement  was  not  required  (445  F. 
Supp.  1349  (E.D.  Va.  1978))  and  that  there  was  no  cause  of  action 
in  federal  court  (495  F.  Supp.  1229  (1980);  501  F.  Supp.  821 
(1980))  . 

We  have  represented  the  Province  of  Ontario  in  judicial  and 
administrative  proceedings  concerning  the  Clean  Water  Act 
discharge  permit  for  the  City  of  Niagara  Falls  wastewater 
treatment  plant.   The  New  York  Department  of  Environmental 
Conservation  first  issued  a  renewal  permit  in  1982.   We  prepared 
comments  on  the  draft  permit  and  intervened  on  behalf  of  Ontario 


311 


in  New  York  state  court  when  the  permit  was  challenged  by  the 
City  and  industry  groups.   The  permit  was  vacated  by  the  court  on 
procedural  grounds.   Industrial  Liaison  Committee  v.  Flacke.  479 
N.Y.S.2d  696  (S.Ct.  Albany  Cty.  1984),  affirmed,  485  N.Y.S.2d  662 
(3d  Dept.  1985) .   After  the  state  issued  a  new  draft  permit  in 
1987,  Ontario  was  granted  party  status  by  DEC  to  challenge  this 
permit.   We  are  representing  Ontario  in  negotiations  with  EPA 
concerning  a  new  permit  for-  the  plant.   We  have  also  represented 
Ontario  as  an  intervenor  in  related  litigation  brought  by  the 
City  and  other  parties  in  New  York  state  court  challenging  a  DEC 
regulation  which  authorized  technology-based  permit  limits  for 
municipal  treatment  plants.   Buffalo  Sewer  Authority  v.  DEC. 

WATER  SUPPLY 

We  advised  a  Florida  landowner  on  legal  strategies  for 
limiting  growth  and  relieving  pressure  on  Florida's  limited  water 
supply.   Our  analysis  examined  municipal  water  franchise  agree- 
ments, state  water  regulations  and  statutes,  the  federal  Safe 
Drinking  Water  Act  relating  to  underground  aquifers,  and 
statutes  affecting  the  Everglades  National  Park. 

AIR  QUALITY 

In  State  of  New  York  v.  Thomas.  613  F.  Supp.  1472  (D.D.C. 
1985),  reversed,  802  F.2d  1443  (D.C.  Cir.  1986),  certiorari 
denied,  482  U.S.  919  (1987),  we  represented  the  Province  of 
Ontario,  Canada,  as  an  intervenor  in  a  case  brought  by  the 
northeastern  states  to  force  EPA  to  require  states  to  revise 
their  Clean  Air  Act  implementation  plans  to  eliminate  pollution 
causing  acid  rain  in  Canada.   The  district  court  ordered  EPA  to 
issue  notices  to  the  polluting  states,  but  the  court  of  appeals 
reversed  on  the  ground  that  the  notices  could  not  issue  unless 
EPA  first  conducted  a  rulemaking  proceeding  on  the  issue  of 
whether  the  states'  pollution  was  endangering  Canada.   We  then 
petitioned  EPA  to  conduct  this  rulemaking  proceeding.   After  EPA 
refused  to  do  so,  we  petitioned  the  court  of  appeals  to  require 
EPA  to  begin  the  rulemaking  process.   Her  Majesty  the  Queen  in 
Right  of  Ontario  v.  EPA.   The  court  of  appeals  held  that  EPA  was 
not  required  to  make  findings  as  to  the  endangerment  to  Canada 
and  as  to  Canada  having  equivalent  regulations  as  the  United 
States  until  it  had  adequate  information  to  issue  notices  to  the 
states  to  remedy  the  situation.   912  F.2d  1525  (D.C.  Cir.  1990). 
The  Court  further  held  that,  even  though  10  years  had  elapsed 
since  the  first  petition  to  EPA,  EPA's  future  to  act  on  the 
petitions  was  not  arbitrary  and  capricious.   However,  the  court 
suggested  that  EPA  might  have  to  act  after  issuance  of  the 
report  of  the  Natural  Acid  Precipitation  Assessment  Program  in 
late  1990.   Before  that  occurred,  Congress  enacted  a 
comprehensive  acid  rain  program  in  the  Clean  Air  Act  Amendments 
Of  1990. 


312 


We  also  represented  the  Province  of  Ontario  before  EPA  in  a 
proceeding  under  Section  126  of  the  Clean  Air  Act  to  consider 
claims  by  the  States  of  New  York,  Pennsylvania  and  Maine  that 
midwestern  pollution  is  being  transported  long  distances  and  is 
causing  acid  rain  in  the  northeast.   The  sources  at  issue  in  that 
proceeding  are  the  same  as  those  that  are  causing  acid  rain  in 
Ontario.   EPA  denied  the  petition.   We  have  advised  the  Province 
generally  as  to  legislative,- administrative,  and  litigation 
strategies  to  deal  with  the  acid  rain  problem,  including  the  acid 
rain  regulations  issued  under  the  1990  Clean  Air  Act  amendments. 

In  Sierra  Club  v.  Fri.  344  F.  Supp.  253  (D.D.C.  1972), 
affirmed,  4  ERC  1815  (D.C.  Cir.  1972),  affirmed  by  an  equally 
divided  Court,  412  U.S.  451  (1973),  the  Supreme  Court  held  that 
the  Clean  Air  Act  requires  that  air  quality  in  areas  still  having 
clean  air  must  be  protected  from  significant  deterioration  as 
well  as  that  air  quality  must  be  improved  in  areas  with  heavily 
polluted  air.   The  district  court  ordered  the  government  to  pay 
more  than  $50,000  in  attorneys'  fees  to  the  plaintiffs.   As  a 
result  of  this  case,  EPA  issued  regulations  for  the  prevention  of 
significant  deterioration  (PSD)  of  air  quality  in  clean  air 
areas  and  subsequently  Congress  adopted  a  PSD  program. 

In  Sierra  Club  v.  EPA,  540  F.2d  1114  (D.C.  Cir.  1976),  re- 
manded, 434  U.S.  809  (1977),  we  unsuccessfully  challenged  EPA's 
regulations  on  significant  deterioration  as  not  providing 
adequate  protection  for  clean  air.   However,  we  were  successful 
as  intervenors  in  the  related  cases  brought  by  industry 
challenging  the  power  of  EPA  to  issue  regulations  since  the  court 
of  appeals  upheld  the  regulations. 

EPA  determined  that  certain  PSD  provisions  of  the  1977  Clean 
Air  Act  Amendments  would  not  apply  to  sources  which  obtained  PSD 
permits  before  March  1,  1978,  and  which  began  construction  before 
March  19,  1979.   The  most  significant  of  these  provisions  was  the 
requirement  that  new  sources  use  the  "best  available  control 
technology"  determined  on  a  case-by-case  basis  to  limit  emis- 
sions.  Representing  the  Northern  Cheyenne  Tribe,  Sierra  Club  and 
Friends  of  the  Earth,  we  petitioned  the  court  to  require  EPA  to 
implement  the  PSD  Amendments  as  of  their  enactment,  August  7, 
1977.   We  also  intervened  to  oppose  industry's  attempt  to 
postpone  the  effective  date  even  further  than  EPA  wanted.   The 
court  of  appeals  rejected  both  the  environmental  and  industry 
attacks  on  EPA's  implementation  of  the  PSD  provisions  of  the 
Amendments.   Citizens  to  Save  Spencer  County  v.  EPA.  600  F.2d  844 
(D.C.  Cir.  1979).   EPA  agreed  to  pay  a  portion  of  our  attorneys' 
fees. 

We  advised  the  Northern  Cheyenne  Tribe  throughout  the  pro- 
ceedings it  and  EPA  held  to  redesignate  its  reservation  as  a 
Class  I  air  quality  area  under  the  significant  deterioration 
regulations.   Aft»r  EPA  approved  the  redesignation,  various  elec- 


313 


trie  utilities  and  other  parties  challenged  EPA's  decision.   In 
Nance  v.  EPA.  645  F.2d  701  (9th  Cir.  1981),  the  court  approved 
the  redesignation.   We  represented  the  Tribe  as  intervenors  in 
this  litigation.   The  government  agreed  to  pay  a  portion  of  the 
attorneys1  fees  in  this  case. 

In  Montana  Power  Co.  v.  EPA,  several  utilities  brought  suit 
seeking  to  invalidate  the  determination  of  EPA  that  the  Colstrip 
power  plant  was  subject  to -EPA's  prevention  of  significant 
deterioration  regulations.   We  represented  the  Northern  Cheyenne 
Tribe  and  Northern  Plains  Resource  Council  as  intervenors  in 
support  of  EPA.   The  district  court  held  that  EPA's  application 
of  its  PSD  regulations  to  the  plant  was  arbitrary  and  capricious. 
While  the  district  court's  decision  was  on  appeal,  the  1977 
Amendments  to  the  Clean  Air  Act  were  passed,  and  EPA  concluded 
that,  regardless  of  its  previous  regulations,  the  PSD 
requirements  of  the  1977  Amendments  applied  to  the  plant.   The 
utilities  then  petitioned  for  review  of  EPA's  new  determination, 
and  the  Tribe  and  Council  again  intervened.   The  two  cases  were 
consolidated  before  the  court  of  appeals,  which  held  that  the 
Colstrip  power  plant  was  subject  to  the  PSD  regulations.   429  F. 
Supp.  683  (D.^Moht.  1977),  reversed,  608  F.2d  334  (9th  Cir. 
1979). 

We  represented  the  Northern  Cheyenne  Tribe  and  the  Northern 
Plains  Resource  Council  in  EPA's  extensive  proceedings  concerning 
the  Montana  Power  Company's  application  for  a  PSD  permit  under 
the  Clean  Air  Act  for  the  Colstrip  power  plant  which  the  company 
claimed  met  the  Class  I  increments  of  the  PSD  program.   After  EPA 
initially  proposed   to  grant  the  permit,  we  persuaded  EPA  to 
reject  it.   The  utilities  petitioned  for  review  in  the  Court  of 
Appeals  for  the  Ninth   Circuit.   Puget  Sound  Power  and  Light 
Company  v.  EPA.   We  represented  the  Northern  Cheyenne  Tribe  and 
Northern  Plains  Resource  Council  which  intervened.   Subsequently, 
the  company  made  a  new  application  to  EPA,  which  provided  for 
substantially  better  air  pollution  controls,  and  this  application 
was  approved.   The  utilities  dismissed  their  case  after  they 
entered  into  a  settlement  with  the  Tribe  under  which  the  Tribe 
received  jobs,  air-quality  monitoring,  and  financial  assistance 
to  compensate  for  the  impacts  of  the  plant  on  the  reservation. 

We  represented  the  Roosevelt  Campobello  International  Park 
Commission  in  a  petition  to  review  EPA's  approval  of  a  PSD  permit 
for  an  oil  refinery  in  Eastport,  Maine.   The  court  retained 
jurisdiction  of  the  petition  until  EPA  promulgated  new  rules 
which  would  allow  the  refinery  to  be  exempt  from  the  1977 
Amendments  to  the  Clean  Air  Act.   Roosevelt  Campobello 
International  Park  Commission  v.  EPA.  684  F.2d  1034  (1st  Cir. 
1982) .   We  also  represented  the  Commission  in  a  petition  to 
review  the  existing  rules  for  grandfathering  new  sources  under 
the  pre-1977  Clean  Air  Act.   Roosevelt  Campobello  International 
Park  Commission  v.  EPA.   The  refinery  has  never  been  built. 


314 


We  represented  Citizens  Against  the  Refinery's  Effects  and 
the  Chesapeake  Bay  Foundation  in  opposing  a  refinery  in  the 
Hampton  Roads  area  of  Virginia.   In  one  case,  we  challenged  EPA's 
decision  to  approve  a  revision  to  Virginia's  State  Implementation 
Plan  which  established  an  asphalt  substitution  program  to  offset 
hydrocarbon  emissions  from  the  refinery,  on  the  grounds  that  the 
offset  was  inconsistent  with  the  Clean  Air  Act  and  with  EPA's 
Emission  Offset  Interpretative  Ruling  under  that  Act.   In  the 
other  case,  we  challenged  EPA's  decision  to  issue  a  PSD  permit 
for  the  refinery  on  the  ground  that  EPA  violated  the  Clean  Air 
Act  and  its  own  regulations  when  it  analyzed  the  modeling  and 
monitoring  data  to  predict  the  air  guality  impact  of  the 
facility.   The  court  of  appeals  held  for  EPA  in  both  cases. 
Citizens  Against  Refinery  Effects  v.  EPA.  643  F.2d  178,  183  (4th 
Cir.  1981) .   However,  the  refinery  proposal  was  abandoned. 

We  advised  a  citizens  group  in  Wilmington,  North  Carolina, 
which  opposed  construction  of  an  oil  refinery  proposed  by  the 
Brunswick  Energy  Company.   Our  analysis  related  to  the 
compatibility  of  the  refinery  with  the  North  Carolina  Coastal 
Area  Management  Act,  the  Clean  Air  -Act,  and  NEPA.   We  recommended 
focusing  on  the  lack  of  a  demonstrated  need  for  oil  refineries  in 
the  face  of  current  U.S.  demand  for  oil.   The  project  was 
abandoned  by  the  company  on  the  basis  of  the  reduced  demand  for 
oil  products  through  the  year  2000. 

In  Vavra  v.  EPA,  we  filed  a  petition  in  the  Supreme  Court  on 
behalf  of  citizens  residing  near  Galveston  Bay,  Texas,  seeking 
review  of  a  decision  by  the  court  of  appeals  that  EPA's 
conditional  approval  of  the  State  of  Texas'  revisions  to  its 
state  implementation  plan  and  its  resulting  refusal  to  apply  the 
Act's  construction  ban  did  not  violate  the  Clean  Air  Act  even 
though,  according  to  EPA,  the  revisions  did  not  fully  comply  with 
the  Act.   The  Supreme  Court  denied  the  petition  for  certiorari. 
459  U.S.  822  (1982)  . 

In  Citizens'  Ass'n  of  Georgetown  v.  Washington.  370  F.  Supp. 
1101  (D.D.C.  1974),  the  court  denied  claims  by  a  local  citizens' 
organization  that  construction  of  an  urban  commercial  development 
would  result  in  increased  traffic  and  thereby  cause  a  violation 
of  the  Clean  Air  Act.   While  the  district  court  subseguently 
ordered  the  District  of  Columbia  government  to  pay  one  third  of 
the  attorneys'  fees  of  plaintiffs  (383  F.  Supp.  136  (D.D.C. 
1974)),  the  court  of  appeals  ruled  that  the  district  court  lacked 
jurisdiction  to  award  fees  to  nonprevailing  parties  under  the 
Clean  Air  Act  (535  F.2d  1318  (D.C.  Cir.  1976)). 

On  behalf  of  Group  Against  Smog  and  Pollution  (GASP)  in 
Pittsburgh,  we  submitted  comments  to  EPA  opposing  the  deferral  of 
Jones  &  Laughlin  Steel's  obligation  to  meet  coke  oven  gas  emis- 
sions limitations  at  its  Pittsburgh  Works.   Jones  &  Laughlin 


315 


applied  to  EPA  in  November  1981  under  the  Steel  Industry 
Compliance  Extension  Act  of  1981  for  an  extension  of  the  deadline 
stipulated  in  its  consent  decree  for  repairing  its  coke  oven  gas 
desulfurization  system.   EPA  denied  Jones  &  Laughlin's 
application  and  filed  a  contempt  action  against  the  company  for 
its  failure  to  comply  with  the  consent  decree.   See  United  States 
v.  Jones  &  Lauqhlin  Steel  Corp.,  804  F.2d  348  (6th  Cir.  1986). 

We  represented  residents  in  Frederick  County,  Maryland,  in 
opposing  the  expansion  of  a  fluoride-emitting  aluminum  reduction 
facility  in  that  area  in  hearings  before  the  state  health  de- 
partment. 

We  prepared  extensive  legal  analysis,  comments  and  draft 
documents  for  the  State  of  New  Jersey  protesting  the  failure  of 
the  City  of  Philadelphia  to  regulate  excessive  emissions  of 
sulfur  dioxide. 

We  represented  the  National  Coalition  for  Clean  Air  and  the 
Northern  Cheyenne  Tribe  in  support  of  Congressional  legislation 
which  would  effectively  prevent  significant  deterioration  of  air 
guality  in  clean  air  areas.   This  -work  included  Congressional 
testimony  and  the  drafting  of  statutory  language.   In  1977, 
Congress  adopted  Clean  Air  Act  Amendments  embodying  most  of  the 
provisions  we  supported. 

We  prepared  a  legal  analysis  of  the  air-quality  implications 
of  the  use  of  refuse-derived  fuels  as  a  substitute   for  fossil 
fuels  in  utility  and  industry  boilers  for  the  Brookhaven 
National  Laboratory  and  the  Princeton  Center  for   Environmental 
Studies. 

Bruce  Terris  was  co-chairman  of  the  Air  Quality  Task  Force 
of  the  National  Coal  Policy  Project  which  was  an  effort  to  obtain 
the  agreement  of  environmentalists  and  industry  on  issues  re- 
lating to  coal  development.   Other  members  of  the  office  did  much 
of  the  environmental  staff  work  for  the  Task  Force.   The  report 
was  published  as  Where  We  Agree,  Report  of  the  National  Coal 
Policy  Project. 

TOXIC  WASTES 

We  are  advising  and  representing  the  Province  of  Ontario  on 
toxic  waste  issues  involving  the  area  near  the  Niagara  River. 

In  United  States  v.  Hooker  Chemicals  &  Plastics  Corp. ,  101 
F.R.D.  444  (W.D.N.Y.  1984),  the  court  granted  Ontario's  motion  to 
intervene  to  challenge  a  proposed  settlement  of  an  action 
involving  a  hazardous  waste  site  next  to  the  Niagara  River. 
However,  the  court  rejected  Ontario's  arguments  that  the 
settlement  agreement  violated  public  policy  by  not  requiring  a 


316 


long-term,  permanent  remedy  at  the  site.   607  P.  Supp.  1052 
(W.D.N.Y.  1985),  affirmed,  776  F.2d  410  (2d  Cir.  1985). 

We  have  represented  the  Province  of  Ontario  in  state 
proceedings  regarding  permits  for  two  hazardous  waste  landfills 
near  the  Niagara  River.   At  the  SCA  landfill  in  Model  City, 
Ontario's  participation  led  to  an  agreement  to  perform  improved 
groundwater  monitoring  and  studies  regarding  the  appropriate 
cover  for  final  closure.   At  the  CECOS  landfill  in  Niagara  Falls, 
Ontario  participated  in  a  lengthy  hearing  before  the  New  York 
Department  of  Environmental  Conservation  in  which  Ontario 
contended  that  the  hydrogeological  conditions  at  the  site  were 
inadequate.   The  DEC  agreed  and  denied  CECOS'  application  for  a 
permit  to  expand  its  landfill  operations.   We  also  continue  to 
advise  the  Province  as  to  developments  concerning  other  hazardous 
waste  disposal  areas  which  may  affect  the  Niagara  River. 

In  United  States  v.  Westinghouse  Electrical  Corp.  (N.D. 
Ind.),  we  represented  the  Indiana  Public  Interest  Research  Group 
which  sought  to  intervene  to  challenge  a  proposed  settlement  of  a 
suit  brought  by  the  federal  government  under  Section  7003  of  the 
Resource  Conservation  and  Recovery  Act  concerning  Westinghouse' s 
generation  and  improper  disposal  of  polychlorinated  biphenols 
(PCBs)  and  other  hazardous  waste.   The  district  court  denied  the 
motion  on  the  ground  that  InPIRG  had  delayed  too  long  in  seeking 
to  intervene. 

We  represented  a  citizens  group  in  Buckingham  County, 
Virginia,  before  the  county  Planning  Board  on  issues  concerning 
the  continued  operation  and  expansion  of  an  existing  toxic  waste 
disposal  facility  and  the  potential  construction  of  other  such 
facilities  in  the  county. 

WILDLIFE 

Sierra  Club  v.  Hickel  involved  an  exchange  of  land  between 
the  Fish  and  Wildlife  Service  and  a  utility  company  for  the 
construction  of  a  nuclear  power  plant.   The  court  of  appeals  held 
that  the  exchange  did  not  violate  various  wildlife  statutes  (476 
F.2d  1048  (6th  Cir.  1972))  and  the  Supreme  Court  denied  our  peti- 
tion for  a  writ  of  certiorari  (411  U.S.  920  (1973)). 

In  Wilderness  Society  v.  Hathaway,  the  wilderness  Society 
challenged  the  transfer  of  three  large  western  game  ranges  from 
joint  Fish  and  Wildlife  Service  and  Bureau  of  Land  Management 
administration  to  the  sole  administration  of  BLM.   The  district 
court  held  that  the  Secretary  of  the  Interior  had  no  authority  to 
transfer  the  game  ranges  from  the  jurisdiction  of  the  Fish  and 
Wildlife  Service  and  that  the  lack  of  an  environmental  impact 
statement  violated  NEPA.   5  ELR  10118  (D.D.C.  1975).   Congress 
subsequently  enacted  a  statute  placing  the  ranges  under  the  sole 
jurisdiction  of  the  Fish  and  Wildlife  Service. 

8 


317 


Society  for  Animal  Rights  v.  Schlesinger  involved  the  mass 
killing  of  millions  of  blackbirds  in  Kentucky  and  Tennessee  by 
chemical  spraying  in  alleged  violation  of  NEPA,  the  Migratory 
Bird  Act  and  other  statutes.   After  the  court  refused  to  transfer 
the  case  and  a  preliminary  injunction  was  denied  (512  F.2d  915 
(D.C.  Cir.  1975)),  the  Fish  and  Wildlife  Service  agreed  to 
prepare  a  comprehensive-  environmental  impact  statement  on  the 
program  and  not  to  provide  the  chemical  to  kill  blackbirds  until 
the  statement  was  finished.   Congress  subsequently  passed  a 
statute  amending  NEPA,  partially  nullifying  the  agreement,  and 
allowing  the  chemical  to  be  used  prior  to  completion  of  the 
environmental  statement. 

We  represented  the  Audubon  Society  at  EPA  meetings 
concerning  the  use  of  pesticides  against  blackbirds  in  Tennessee 
in  violation  of  the  federal  pesticide  laws. 

In  Sierra  Club  v.  Andrus.  395  F.  Supp.  1187  (D.D.C.  1975), 
the  district  court  held  that  NEPA  required  preparation  of  an 
environmental  impact  statement  on  the  annual  budget  of  the 
National  Wildlife  Refuge  System  because  budgetary  decisions  have 
a  substantial  effect  on  the  management  of  the  refuges.   The  court 
of  appeals  agreed  that  environmental  statements  must  be  prepared 
on  budget  proposals  and  ordered  the  Office  of  Management  and 
Budget  to  issue  regulations  concerning  the  preparation  of  such 
environmental  statements.   581  F.2d  895  (D.C.  Cir.  1978). 
However,  it  required  statements  to  be  prepared  on  budget  requests 
only  when  they  make  significant  changes  in  the  status  quo  and  not 
on  an  annual  basis.   The  Supreme  Court  reversed  and  held  that 
NEPA  does  not  require  the  preparation  of  environmental  impact 
statements  on  the  budgets  of  federal  agencies.   442  U.S.  347 
(1979).   The  Court  also  stated,  however,  that  environmental 
statements  are  required  on  any  programmatic  decisions  related  to 
the  budget.   Other  counsel  represented  the  Sierra  Club  in  the 
Supreme  Court. 

Defenders  of  Wildlife  v.  Andrus.  428  F.  Supp.  167  (D.D.C. 
1977)  ,  involved  the  validity  of  the  shooting  hours  in  the 
waterfowl  hunting  regulations  of  the  Fish  and  Wildlife  Service. 
The  district  court  held  that  the  shooting  hours  were  invalid 
because  they  were  not  based  on  adequate  studies  showing  that  they 
protected  migratory  birds. 

National  Rifle  Ass'n  of  America,  Inc.  v.  Kleppe.  4  25  F. 
Supp.  1101  (D.D.C.  1976),  affirmed,  571  F.2d  674  (D.C.  Cir. 
1978) ,  involved  the  validity  of  the  regulations  issued  by  the 
Fish  and  Wildlife  Service  to  reduce  the  use  of  lead  shot  in  duck 
hunting.   We  represented  Defenders  of  wildlife  as  intervenors  in 
support  of  the  Service.   The  court  upheld  the  regulations. 


318 


Conner  v.  Andrus  involved  a  challenge  in  the  District  Court 
for  the  Western  District  of  Texas  to  Fish  and  Wildlife  Service 
regulations  prohibiting  all  duck  hunting  in  designated  areas  of 
New  Mexico  and  Texas.   We  represented  Defenders  of  Wildlife  in  an 
unsuccessful  attempt  to  intervene  in  support  of  the  validity  of 
the  regulations. 

We  represented  the' Roosevelt  Campobello  International  Park 
Commission  in  adjudicatory  proceedings  before  EPA  regarding  EPA's 
decision  to  disapprove  an  NPDES  permit  for  a  refinery  in 
Eastport,  Maine.   The  issues  chiefly  involved  the  navigational 
risks  and  the  threat  of  oil  spillage  to  the  bald  eagle  and 
whales,  which  are  endangered  species.   The  Administrative  Law 
Judge  approved  the  permit.   The  court  of  appeals  held  that  the 
ALJ  did  not  have  the  best  available  scientific  evidence 
concerning  the  risk  of  oil  spills  and  required  certain  studies 
before  a  decision  could  properly  be  made  to  approve  a  permit. 
The  court  also  held  that  these  additional  studies  concerning  risk 
would  have  to  be  addressed  in  a  supplemental  environmental  impact 
statement.   Roosevelt  Campobello  International  Park  Commission  v. 
EPA.  684  F.2d  1041  (1st  Cir.  1982). 

We  represented  the  Roosevelt  Campobello  International  Park 
Commission  as  intervenors  when  the  Pittston  Company  applied  for 
an  exemption  from  the  Endangered  Species  Act  to  the  Endangered 
Species  Review  Board  relating  to  its  proposed  refinery.   That 
proceeding  was  dismissed,  however,  when  the  court  found  that  the 
company's  application  for  an  exemption  was  premature.   Pittston 
Co.  v.  Endangered  Species  Committee.  14  ERC  1257  (D.D.C.  1980). 

North  Slope  Borough  v.  Andrus.  which  is  discussed  elsewhere 
in  this  memorandum,  involved  the  protection  of  endangered  species 
of  whales  under  the  Endangered  Species  Act. 

HIGHWAYS 

Upper  Pecos  Ass'n  v.  Peterson  involved  a  challenge  to  con- 
struction of  a  road  through  a  national  forest  in  New  Mexico  to  be 
constructed  with  funds  granted  by  the  Department  of  Commerce,  on 
the  ground  that  the  environmental  impact  statement  required  by 
NEPA  was  not  prepared  prior  to  the  grant  of  funds.   We  prepared 
the  petition  for  a  writ  of  certiorari,  which  was  granted  by  the 
Supreme  Court.   406  U.S.  944  (1972).   The  government  then  agreed 
to  preparation  of  a  new  environmental  impact  statement  and 
reconsideration  of  the  project  on  the  basis  of  it. 

Smeltzer  v.  Adams  involved  whether  the  proposed  construction 
of  a  highway  in  north-central  Iowa  violated  NEPA  and  Section  4(f) 
of  the  Department  of  Transportation  Act.   The  court  held  that  the 
Department  of  Transportation  was  required  to  prepare  an 
environmental  statement  before  the  highway  could  be  built 
analyzing  its  cumulative  impact  and  that  the  site-specific 

10 


319 


environmental  statement  for  a  20-mile  segment  of  the  highway  was 
inadequate.   11  ERC  1367  (N.D.  Iowa  1978).   A  new  EIS  was 
prepared  which  the  district  court  held  was  adequate  under  NEPA. 

• 

Farmland  Preservation  Ass'n  v.  Goldschmidt  involved  whether 
the  proposed  construction  of  an  interstate  highway  in  east- 
central  Iowa  violated  NEPA.   Plaintiffs,  a  coalition  of  farmers, 
asserted  that  the  EIS  inadequately  considered  alternatives, 
failed  to  consider  the  cumulative  impact  of  constructing  the 
entire  interstate  highway,  and  inadequately  analyzed  secondary 
impacts.   The  district  court  held  that  the  environmental 
statement  was  adequate  and  the  court  of  appeals  affirmed.   491  F. 
Supp.  601  (N.D.  Iowa  1979),  affirmed,  611  F.2d  233  (8th  Cir. 
1979). 

In  National  Wildlife  Federation  v.  Adams,  we  brought  suit  in 
the  District  of  Columbia  on  behalf  of  national  environmental 
groups  and  local  landowners  challenging  the  construction  of  a 
highway  in  Kitsap  County,  Washington,  on  the  grounds  that  the 
President's  Executive  Order  11990  relating  to  wetlands,  NEPA, 
and  a  military  construction  statute  had  been  violated.   After 
the  suit  was  transferred  to  a  different  district,  other  counsel 
assumed  responsibility  for  the  case.   The  district  court  denied 
plaintiffs'  motion  for  a  preliminary  injunction  and  summary 
judgment  and  the  decision  was  affirmed  on  appeal.   13  ERC  1343 
(W.D.  Wash.  1979),  affirmed,  629  F.2d  587  (9th  Cir.  1980). 

We  have  advised  the  Sierra  Club  concerning  its  participation 
in  highway  litigation  in  the  City  of  Baltimore,  a  citizens  group 
concerning  possible  highway  litigation  in  Baltimore  County,  an 
individual  concerning  highway  litigation  in  northern  Virginia, 
and  a  group  of  farmers  in  Iowa  regarding  their  rights  to  addi- 
tional connector  roads  to  a  proposed  freeway. 

AIRPORTS 

In  Citizens  Against  Burlington.  Inc.  v.  Busev.  938  F.2d  190 
(D.C.  Cir.),  certiorari  denied,  112  S.  Ct.  616  (1991),  the  firm 
represented  a  citizen  group  which  challenged  the  approval  of  the 
Federal  Aviation  Administration  of  an  Airport  Layout  Plan  for  a 
cargo  hub  in  Toledo,  Ohio.   Petitioners  claimed  in  the  court  of 
appeals  that  the  approval  is  invalid  because  the  environmental 
impact  statement  failed  to  analyze  adequately  alternative  sites 
for  this  hub  or  the  noise  impact  of  its  operations.   The  court  of 
appeals  held  that  the  EIS  was  adequate  because  it  discussed  the 
alternatives  of  approving  the  expansion  and  not  approving  it  and 
that  the  EIS  did  not  have  to  discuss  alternative  locations  in 
depth.   The  court  also  held  that  while  the  FAA  violated  the 
regulations  governing  environmental  impact  statements  by 
publishing  an  EIS  prepared  largely  by  a  contractor  the  FAA  itself 
did  not  select,  the  violation  did  not  warrant  invalidating  the 
EIS.   We  did  not  represent  the  petitioners  in  the  Supreme  Court. 

ll 


320 


In  State  of  Missouri  v.  Coleman,  we  represented  HUSTLE,  a 
group  of  Illinois  farmers  and  other  concerned  residents  who 
intervened  in  order  to  oppose  the  construction  of  a  new  airport 
in  the  Columbia  Waterloo  area  of  Illinois  to  serve  the  St.  Louis 
region.   While  the  district  court  rejected  our  position  (427  F. 
Supp.  1252  (D.D.C.  1977)),  the  Secretary  of  Transportation  was 
persuaded  to  disapprove  further  federal  funding  for  the  new 
airport  and  it  was  not  built. 

RAILROADS 

Sierra  Club  v.  ICC  involved  the  decision  of  the  Interstate 
Commerce  Commission  to  approve  a  130-mile  railroad  to  facilitate 
coal  development  in  northeastern  Wyoming.   The  court  held  that 
the  ICC  decision  violated  NEPA  and  remanded  the  case  to  the 
agency.   11  ERC  1241  (D.C.  Cir.  1978).   Subsequently,  however, 
the  court  en  banc  withdrew  its  earlier  decision  and  ordered  the 
case  to  be  heard  before  the  entire  court  of  appeals.   In  light  of 
the  construction  that  had  already  occurred  on  the  rail  line  and 
the  small  probability  that  further  litigation  would  prevent  the 
completion  of  the  line,  the  Sierra  Club  chose  to  dismiss  the 
appeal. 

We  represented  a  Wyoming  landowner  and  the  WyoBraska 
Landowners  Association,  an  organization  of  Wyoming  and  Nebraska 
farmers  and  ranchers,  challenging  the  application  of  the  Chicago 
and  Northern  Western  Transportation  Company  to  the  Interstate 
Commerce  Commission  for  authority  to  construct  and  operate  a  new 
56-mile  rail  line  in  Wyoming  and  Nebraska.   The  Commission 
approved  the  line.   The  court  of  appeals  upheld  the  Commission's 
approval,  but  stressed  that  the  mitigating  measures  ordered  by 
the  ICC  were  to  be  taken  seriously  by  the  railroad  and  could  be 
enforced  by  the  landowners.   Mobil  Oil  Corp.  v.  ICC,  685  F.2d  624 
(D.C.  Cir.  1982). 

We  represented  the  Northern  Plains  Resource  Council  in  pro- 
ceedings before  the  Interstate  Commerce  Commission  challenging  a 
proposed  89-mile  rail  line  to  the  Powder  River  Basin  in  Montana. 
NPRC  contended,  in  part,  that  the  railroad  proposal  violated  the 
Mineral  Leasing  Act  because  the  railroad's  backers  planned  to 
transport  coal  from  their  own  federal  coal  leases  on  the  rail 
line.   The  ICC  first  agreed  with  NPRC  that  the  issue  was  a  signi- 
ficant one  requiring  a  hearing.   After  the  hearing,  an  ICC  ad- 
ministrative law  judge  accepted  many  of  NPRC's  contentions  but 
ultimately  concluded  there  was  no  statutory  violation. 

NUCLEAR  POWER 

In  Peshlakai  v.  Duncan,  we  represented  89  Navajo  Indians 
and  Friends  of  the  Earth  in  an  action  seeking  to  force  six 
federal  agencies  to  prepare  national,  regional  and  site-specific 

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321 


environmental  impact  statements  on  the  mining  and  milling  of 
uranium.   The  district  court  denied  a  temporary  restraining 
order  and  preliminary  injunction  as  to  a  small  in  situ  mining 
project.   476  F.  Supp.  1247  (D.D.C.  1979). 

We  participated  at  EPA  hearings  on  thermal  standards  to  be 
used  at  the  Calvert  Cliffs'  nuclear  power  plant. 

We  advised  a  local  citizens  group  in  the  Staunton  River  area 
of  Virginia  concerning  its  opposition  to  the  construction  of  a 
pump  storage  and  nuclear  power  complex. 

We  prepared  an  extensive  analysis  for  the  Natural  Resources 
Defense  Council  of  the  legal  requirements  for  the  supplemental 
environmental  impact  statement  on  the  proposed  Clinch  River 
Liquid  Metal  Fast  Breeder  Reactor  and  concerning  the  inadequacy 
of  the  existing  impact  statement.   The  Nuclear  Regulatory 
Commission  determined  that  a  supplemental  impact  statement  was 
required. 

GEOTHERMAL  ENERGY 

We  represented  the  Santa  Clara  Pueblo  in  hearings  held  by 
the  Department  of  the  Interior  concerning  an  environmental  impact 
statement  on  a  proposed  geothermal  demonstration  project  in  New 
Mexico.   We  also  submitted  comments  for  the  Pueblo  to  the 
Department  of  the  Interior  which  analyzed  the  Department's  docu- 
ments on  the  impact  of  the  project  on  the  Pueblo's  religion.   The 
state  air  board  rejected  an  industry  proposal  which  would  have 
greatly  relaxed  state  hydrogen  sulfide  emission  standards  and 
thereby  allowed  expanded  geothermal  development.   We  also 
prepared  a  legal  memorandum  for  the  Pueblo  on  geothermal  leases 
entered  into  by  the  Department  of  Agriculture  in  a  national 
forest.   The  proposed  geothermal  demonstration  project  was  later 
abandoned. 

OTHER  ELECTRIC  POWER  GENERATION  AND  TRANSMISSION 

In  Concerned  Citizens  United  v.  Kansas  Power  and  Light, 
which  was  brought  in  Kansas  state  court,  plaintiffs  contended 
that,  under  Kansas  law,  an  electric  utility  could  not  condemn 
land  for  a  coal-burning  powar  plant  because  it  did  not  have 
proper  zoning  and  could  not  show  that  it  would  be  able  to 
comply  with  various   land,  air  and  water  quality  laws.   The 
Kansas  Supreme  Court   rejected  plaintiffs'  position.   215  Kan. 
218,  523  P. 2d  755  (1974).   However,  as  a  result  of  this 
litigation,  the  Kansas   legislature  passed  a  new  statute 
prohibiting  condemnation  of  land  until  the  condemnor  has  shown 
that  it  can  comply  with  relevant  laws. 

In  Woida  v.  United  States,  we  brought  suit  under  NEPA  and 
the  Rural  Electrification  Act  on  behalf  of  a  coalition  of 

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citizens  groups  in  Minnesota  and  North  Dakota  which  opposed  the 
construction  of  a  large  electric  generating  plant,  an  associated 
strip  mine,  and  approximately  500  miles  of  extra-high  voltage 
electric  transmission  lines.   Plaintiffs  sought  an  injunction 
against  further  construction  of  the  unbuilt  portions  of  the 
transmission  lines  and  the  microwave  communications  system 
associated  with  the  project  on  the  ground  that  the  environmental 
impact  statement  was  inadequate.   The  motion  for  a  preliminary 
injunction  was  denied.   446  F.  Supp.  1377  (D.  Minn.  1978). 

We  analyzed  for  Friends  of  the  Earth  whether  the  Laramie 
River  in  Wyoming  is  a  navigable  river,  requiring  Army  Corps  of 
Engineers  approval  for  the  building  of  a  power  plant  which  would 
use  its  waters. 

We  advised  a  local  citizens  group  in  Utah  which  opposed 
construction  of  the  Intermountain  Power  Project,  a  massive  coal- 
fired  generating  plant.   Our  analysis  focused  on  arguments  under 
NEPA,  the  Federal  Land  Policy  and  Management  Act,  the  Endangered 
Species  Act,  and  the  Clean  Air  Act. 

Bruce  Terris  gave  an  address  on  public  participation  in 
energy-related  decision-making  sponsored  by  the  National  Science 
Foundation. 

LIQUID  NATURAL  GAS 

We  participated  in  extensive  adjudicatory  proceedings  before 
the  Federal  Power  Commission  and  Federal  Energy  Regulatory 
Commission  concerning  applications  to  import  and  store  liquid 
natural  gas  (LNG)  in  a  terminal  on  Staten  Island  on  the  ground 
that  the  transportation  and  storage  of  LNG  in  a  highly  populated 
area  is  too  dangerous.   The  facility  has  never  been  used  for  LNG. 

We  drafted  bills  concerning  the  appropriate  location  of 
LNG  facilities  and  liability  for  any  harm  caused  to  persons  or 
property  due  to  accidents  involving  these  facilities. 

SYNTHETIC  FUELS 

Bruce  Terris  was  a  member  of  the  Advisory  Panel  on  Synthetic 
Fuels  to  the  House  Science  and  Technology  Committee  in  1979-1980. 
The  Committee  investigated  the  environmental  and  other  problems 
concerning  the  development  of  synthetic  fuels.   We  wrote  papers 
for  the  Panel  on  the  effect  of  environmental  regulations  on  the 
development  of  synthetic  fuels  and  on  fast-track  legislation  for 
speeding  government  consideration  of  projects  affecting  the 
environment  which  were  then  pending  in  Congress. 


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COAL  DEVELOPMENT 

Sierra  Club  v.  Morton  was  brought  on  behalf  of  the  Sierra 
Club,  National  Wildlife  Federation  and  rancher  organizations  in 
Montana  and  South  Dakota  to  prevent  the  Department  of  the 
Interior  and  other  federal  agencies  from  issuing  coal  leases, 
entering  into  water  options,  or  taking  other  actions  related  to 
coal  development  in  the  Northern  Great  Plains  without  preparing 
an  environmental  impact  statement  analyzing  the  impact  of 
development  on  the  entire  region.   The  district  court  rejected 
our  contentions.   421  F.  Supp.  638  (D.D.C.  1974).   The  court  of 
appeals  held  that,  if  the  federal  government  continued  with  its 
huge  coal  development  in  the  Northern  Great  Plains,  a 
comprehensive  environmental  statement  had  to  be  prepared.   514 
F.2d  856  (D.C.  Cir.  1975) .   The  Department  of  the  Interior  then 
agreed  to  prepare  a  series  of  subregional  environmental 
statements  on  coal  development  in  various  parts  of  the  country. 
The  Supreme  Court  reversed  the  decision  of  the  court  of  appeals 
and  held  that  the  subregional  statements  satisfied  NEPA.   427 
U.S.  390  (1976).   In  doing  so,  it  affirmed  the  requirements   of 
NEPA  as  to  comprehensive  environmental  statements  when  various 
governmental  actions  are  interrelated. 

Cady  v.  Morton  was  brought  by  a  number  of  Montana  ranchers 
to  challenge  the  Department  of  the  Interior's  approval  of  a 
mining  plan  for  a  strip  mine  in  Montana.   The  court  held  that 
NEPA  required  that  an  environmental  impact  statement  be  prepared 
on  the  entire  30,000  acres  leased  for  a  strip  mine,  rather  than 
just  on  the  first  small  portion  of  the  mine,  and  ordered 
reconsideration  of  the  lease  on  the  basis  of  the  new  EIS.   527 
F.2d  786  (9th  Cir.  1975). 

In  NRDC  v.  Hughes,  we  represented  the  Natural  Resources 
Defense  Council,  the  Environmental  Defense  Fund  and  western 
environmental  organizations  in  a  suit  which  resulted  in  a 
decision  that  the  programmatic  environmental  impact  statement 
prepared  by  the  Department  of  the  Interior  on  the  entire  federal 
coal  leasing  program  was  inadequate.   The  court's  order  limited 
federal  coal  leasing  pending  the  completion  of  an  adequate 
programmatic  statement.   437  F.  Supp.  981  (D.D.C.  1977);  454  F. 
Supp.  148  (D.D.C.  1978)  .   The  plaintiffs  and  the  Department  of 
the  Interior  then  agreed  to  a  settlement  in  which  slightly  more 
leasing  was  permitted  and  the  government  dismissed  its  appeal. 
The  case  was  appealed  by  industry  intervenors.   While  their 
appeal  was  pending,  the  Department  of  the  Interior  issued  its  new 
environmental  impact  statement  on  the  federal  coal  leasing 
programs.   The  appeal  was  then  dismissed  as  moot. 

In  NRDC  v.  Berklund.  458  F.  Supp.  925  (D.D.C.  1978), 
affirmed,  609  F.2d  553  (D.C.  Cir.  1979),  we  represented  the 
Natural  Resources  Defense  Council  and  the  Environmental  Defense 
Fund  in  a  suit  challenging  the  position  of  the  Department  of  the 

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Interior  that  the  Secretary  has  no  discretion  to  deny  a 
preference  right  lease  even  if  the  lease  would  result  in  severe 
environmental  harm.   The  district  court  held  that  environmental 
impact  statements  had  to  be  prepared  before  the  Department  could 
enter  into  major  leases  and  that  it  could  consider  environmental 
factors  in  deciding  whether  there  were  commercial  quantities  of 
coal  to  lease.   However,  the  court  further  held  that,  if  there 
were  commercial  quantities -of  coal,  the  Secretary  had  no 
authority  to  refuse  to  lease  on  environmental  or  other  grounds. 

Bruce  Terris  wrote,  with  Eleanor  Granger,  a  law  review 
article  on  federal  coal  leasing.   Granger  and  Terris,  The  Leasing 
of  Federal  Land  for  Coal  Production,  15  Houston  L.  Rev.  1175 
(1978) . 

OIL  DEVELOPMENT 

In  North  Slope  Borough  v.  Andrus.  we  brought  suit  on  behalf 
of  Inupiat  natives  on  the  North  Slope  of  Alaska  against  an  oil 
and  gas  sale  in  the  Beaufort  Sea  because  of  the  threat  to  bowhead 
whales  and  other  native  subsistence  resources.   Although  the 
district  court  initially  denied  our  request  for  a  preliminary 
injunction  (486  F.  Supp.  326  (D.D.C.  1979)),  the  court  later 
upheld  several  of  our  claims  under  the  Endangered  Species  Act  and 
NEPA  and  enjoined  actions  to  consummate  the  sale  or  carry  out 
pre-exploratory  activities  (486  F.  Supp.  332  (1980)).   After  all 
parties  appealed,  the  court  of  appeals  lifted  the  injunction  and 
upheld  the  legality  of  the  lease  sale.   642  F.2d  589  (D.C.  Cir. 
1980).   In  the  meantime,  however,  the  Department  of  the  Interior 
issued  a  new  biological  opinion  giving  more  protection  to  bowhead 
whales  from  oil  development  activities.   Subsequently,  the 
district  court  ordered  the  government  to  pay  the  Borough's 
attorneys'  fees.   515  F.  Supp.  961  (D.D.C.  1981).   However,  the 
order  was  vacated  by  the  court  of  appeals.   689  F.2d  222  (D.C. 
Cir.  1982). 

In  North  Slope  Borough  v.  Hammond,  we  brought  suit  against 
the  state  portion  of  the  same  Beaufort  Sea  oil  and  gas  sale  in 
Alaska  Superior  Court,  raising  claims  under  state  law.   While 
that  court  and  the  Alaska  Supreme  Court  denied  a  preliminary 
injunction,  the  Superior  Court  subsequently  held  that  the  state 
failed  to  explain  adequately  its  reasoning  as  to  why  the  sale 
would  not  harm  the  Alaskan  natives  and  enjoined  activities  to 
develop  the  leases.   The  injunction  was  stayed  by  the  Alaska 
Supreme  Court.   After  the  state  issued  a  new  decision  document, 
the  Superior  Court  again  enjoined  lease  activities,  holding  that 
the  state  lacked  sufficient  information  to  conclude  that  oil 
development  outside  the  barrier  islands  would  not  harm  the 
subsistence  lifestyle  of  the  Alaskan  natives.   North  Slope 
Borough  v.  Hammond.  17  ERC  1656  (1980).   The  Alaska  Supreme  Court 
reversed  the  Superior  Court's  holding  on  this  issue,  but  held 
that  the  state  had  failed  to  make  adequate  findings  under  its 

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Coastal  Zone  Management  Act  and  remanded  the  case  for  further 
administrative  proceedings.   645  P. 2d  750  (1982).   The  state 
agreed  to  pay  a  portion  of  the  attorneys'  fees  in  this  case. 

We  filed  a  petition  for  review  on  behalf  of  the  North  Slope 
Borough  challenging  the  Secretary  of  the  Interior's  five-year 
plan  for  offshore  oil  and  gas  development  on  the  ground  that  it 
failed  to  carry  out  his- trust  responsibilities  to  Alaskan 
natives.   The  court  of  appeals  rejected  the  Borough's  arguments, 
but  held  that  the  plan  was  invalid  under  the  Outer  Continental 
Shelf  Lands  Act  on  grounds  raised  by  other  challengers.   State  of 
California  v.  Watt.  668  F.2d  1290  (D.C.  Cir.  1981).   The  court  of 
appeals  remanded  the  program  to  the  new  Secretary  of  the  Interior 
for  revision.   After  issuance  of  the  revised  program,  the  Borough 
joined  five  states,  two  local  governments,  and  other 
environmental  groups  in  filing  new  petitions  for  review. 
Petitioners  claimed  that  the  revised  program  was  in  violation  of 
the  prior  court  of  appeals'  order  and  the  Outer  Continental  Shelf 
Lands  Act.   The  court  of  appeals  issued  an  order  upholding  the 
validity  of  the  revised  program.   712  F.2d  584  (D.C.  Cir.  1983). 

In  North  Slope  Borough  v.  Watt,  we  filed  a  suit  challenging 
decisions  by  the  Secretary  of  the  Interior  to  reduce  the  seasonal 
restrictions  on  oil  and  gas  drilling  operations  in  the  Beaufort 
Sea  which  were  designed  to  protect  the  bowhead  whale  during  its 
migration.   The  Borough  also  challenged  the  adequacy  of  the 
biological  opinions  on  these  decisions  issued  by  the  National 
Oceanic  and  Atmospheric  Administration  under  the  Endangered 
Species  Act.   The  claims  were  rejected  by  the  district  court.   20 
ERC  1457  (D.  Alas.  1984). 

In  North  Slope  Borough  v.  Hodel,  we  filed  a  suit  challenging 
decisions  by  the  Secretary  of  Interior  to  authorize  exploratory 
drilling  operations  in  the  Beaufort  Sea  during  the  fall  bowhead 
whale  migration.   The  suit  contended  that  noise  from  the  drilling 
operations  would  constitute  takings  of  bowhead  whales  by 
harassment,  in  violation  of  the  Endangered  Species  and  Marine 
Mammal  Protection  Acts.   The  suit  also  raised  claims  under  the 
Outer  Continental  Shelf  Lands  Act,  the  Coastal  Zone  Management 
Act,  and  the  Alaska  National  Interest  Lands  Conservation  Act. 
The  case  was  dismissed  pursuant  to  a  settlement  agreement  in 
which  the  drilling  companies  agreed  to  additional  restrictions  on 
drilling  during  the  whale  migration. 

We  have  provided  advice  to  the  North  Slope  Borough 
concerning  federal  oil  and  gas  activities  on  the  North  Slope  of 
Alaska,  including  on  the  adequacy  of  proposed  operating  orders, 
environmental  impact  statements,  regulations  affecting  marine 
mammals,  biological  opinions  on  endangered  whales,  coastal  zone 
management  plans,  and  other  measures  to  protect  the  environment 
during  OCS  exploration  and  development  and  on  energy  production 
proposals.   We  have  also  provided  advice  concerning  oil  and  gas 

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activities  in  the  Norton  Sound  off  the  western  coast  of  Alaska  to 
native  groups. 

State  of  Alaska  v.  Kleppe  challenged  the  validity  under  NEPA 
of  the  Gulf  of  Alaska  OCS  oil  and  gas  sale.   We  represented  the 
City  of  Yakutat,  the  Cordova  District  Fisheries  Union  and  United 
Fisherman  of  Alaska.   The  district  court  dismissed  the  action. 
404  F.  Supp.  26  (D.D.C. • 1975) .   The  court  of  appeals  affirmed 
except  that  it  held  that  the  Department  of  Interior  was  required 
to  consider  the  inclusion  of  a  termination  clause  in  the  lease. 
580  F.2d  465  (D.C.  Cir.  1978).   After  oil  company  intervenors 
petitioned  for  a  writ  of  certiorari  in  the  Supreme  Court,  the 
case  was  dismissed  as  moot  because  of  the  passage  of  the  Outer 
Continental  Shelf  Lands  Act  Amendments.   439  U.S.  922  (1978). 

Southern  California  Ass'n  of  Governments  v.  Kleppe  and 
related  cases  were  brought  by  fifteen  cities  and  counties  in 
Southern  California,  the  Consumer  Federation  of  America  and  a 
number  of  environmental  organizations  to  challenge  the  validity 
of  the  accelerated  leasing  program  for  the  Outer  Continental 
Shelf  and  the  Southern  California  oil  and  gas  sale.   A 
preliminary  injunction  was  denied.-  6  ELR  20115  (D.D.C.  1975). 
After  transfer  to  the  Central  District  of  California,  the  cases 
brought  by  the  cities  and  counties  were  dismissed  on  grounds  of 
res  judicata  (413  F.  Supp.  563  (1976))  and  the  private  groups 
dismissed  their  suit  voluntarily. 

In  GOO  v.  Andrus.  we  represented  Get  Oil  Out  and  others 
seeking  to  require  preparation  of  site-specific  impact  statements 
for  several  proposals  to  develop  and  produce  oil  and  gas 
resources  in  the  Santa  Barbara  Channel.   The  district  court  held 
that  the  environmental  assessments  were  inadequate  and  enjoined 
construction  of  the  oil  platforms.   468  F.  Supp.  82  (CD.  Cal. 
1979) .   After  the  new  environmental  assessments  were  prepared, 
the  district  court  held  that  an  environmental  impact  statement 
was  not  required.   477  F.  Supp.  40  (1979). 

We  represented  the  Sierra  Club  and  other  environmental       /I 
groups  in  challenging  the  first  sale  of  oil  and  gas  leases  in  the 
Eastern  Gulf  of  Mexico  in  1973.   Plaintiffs  questioned  the 
adequacy  of  the  environmental  impact  statement  prepared  for  the 
lease  sale  under  NEPA.   The  district  court  denied  injunctive 
relief  and  the  court  of  appeals  affirmed.   Sierra  Club  v.  Morton. 
510  F.2d  813  (5th  Cir.  1975). 

Bruce  Terris  was  a  consultant  to  the  Ad  Hoc  Committee  on  the 
Outer  Continental  Shelf  and  to  the  Merchant  Marine  and  Fisheries 
Committee  of  the  House  of  Representatives  concerning  the  Outer 
Continental  Shelf  Lands  Act  of  1978.   Another  attorney  in  the 
firm  was  a  member  of  the  Committee  on  Assessment  of  Arctic  Ocean 
Engineering  Support  Capability  of  the  National  Research  Council. 
This  committee  studied  engineering  and  environmental  obstacles  to 

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development  of  oil  and  gas  resources  in  the  Arctic  Ocean  offshore 
Alaska. 

ENERGY  CONSERVATION 

We  represented  the  Environmental  Defense  Fund  in  hearings 
before  the  Department  of  Transportation  urging  stronger  economy 
standards  for  automobiles  under  the  Motor  Vehicle  Information  and 
Cost  Savings  Act.   This  work  consisted  of  finding  expert 
witnesses  and  assisting  in  the  preparation  of  their  testimony. 

He  represented  a  coalition  of  environmental  groups  (Sierra 
Club,  Friends  of  the  Earth,  Environmental  Defense  Fund,  and 
Natural  Resources  Defense  Council)  in  a  Federal  Trade  Commission 
rulemaking  proceeding  involving  the  labeling  and  advertising  of 
home  insulation.   Through  the  submission  of  written  comments, 
presentation  of  witnesses,  and  cross-examination  of  witnesses 
presented  by  other  interested  parties,  we  urged  promulgation  of  a 
rule  which  would  enhance  residential  energy  conservation  efforts 
through  the  purchase  of  safe  and  effective  insulation.   The 
Commission  promulgated  a  rule  which  was  consistent  with  our 
position,  requiring  that  consumers -be  informed  of  information 
about  the  effectiveness  of  insulation,  expressed  in  R-values, 
through  labeling,  fact  sheets,  advertisements  and  other 
promotional  material. 

We  prepared  an  analysis  of  energy  conservation  for  the  New 
England  Governors'  Conference. 

OCEAN  RESOURCES 

We  assisted  the  Environmental  Defense  Fund  in  preparing 
comments  opposing  a  proposal  of  the  National  Marine  Fisheries  to 
increase  the  maximum  take  permitted  for  important  fishery 
resources  in  New  England.   The  comments  emphasized  that  the 
proposal  undermined  the  achievement  of  important  long-range  goals 
of  the  Fishery  Conservation  and  Management  Act. 

We  represented  Get  Oil  Out  in  supporting  designation  of  a 
marine  sanctuary  off  of  California. 

We  testified  or  submitted  testimony  on  behalf  of  the  New 
England  Governors'  Conference  in  matters  relating  to  deep-water 
ports  and  double-bottom  oil  tankers. 

WATER  PROJECTS 

National  Audubon  Society  v.  Kleppe  involved  the  Garrison 
Diversion  project  in  North  Dakota.   The  suit  claimed  that  the 
environmental  impact  statement  and  wildlife  mitigation  plan  were 
inadequate.   The  district  court  rejected  the  government's  motions 
to  transfer  the  case  to  North  Dakota.   6  ELR  10179,  65371  (D.D.C. 

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1976) .   Plaintiff  and  the  Department  of  the  Interior  agreed  to 
the  halting  of  almost  all  construction  pending  preparation  of  a 
comprehensive  environmental  statement  and  a  new  wildlife 
mitigation  plan  and  reauthorization  of  the  project  by  Congress. 
When  the  Department  violated  its  agreement,  we  obtained  an  order 
from  the  court  of  appeals  that  the  agreement  was  valid.   As  a 
result,  the  district  court  issued  an  injunction  against  further 
acquisition  of  land  or  construction.   17  ERC  1401  (D.D.C.  1981). 
The  court  of  appeals  lifted  the  injunction  and  reversed  on  the 
ground  that  the  agreement  had  expired.   678  F.2d  299  (D.C.  Cir. 
1982) .   A  settlement  was  then  arranged  which  allowed  a  part  of 
the  project  to  be  built,  but  significantly  reduced  the 
environmental  harm. 

We  represented  the  American  and  Canadian  intervenors  in  a 
case  challenging  the  approval  by  the  Federal  Energy  Regulatory 
Commission  of  a  proposal  to  raise  Ross  Dam  in  the  State  of 
Washington.   The  issues  involved  NEPA,  the  Administrative 
Procedure  Act,  the  Federal  Power  Act,  and  the  Wild  and  Scenic 
Rivers  Act,  including  whether  an  environmental  impact  statement 
must  consider  environmental  damage  caused  in  a  foreign  country. 
The  court  of  appeals  upheld  approval  of  the  dam,  in  part  because 
several  of  the  critical  issues  would  be  considered  in  proceedings 
before  the  Federal  Energy  Regulatory  Commission.   Swinomish 
Tribal  Community  v.  FERC,  627  F.2d  499  (D.C.  Cir.  1980).   A 
settlement  was  reached  with  Canada  under  which  the  project  was 
not  built. 

We  represented  the  National  Wildlife  Federation,  other 
national  environmental  groups  and  several  Colorado  environmental 
groups  in  an  action  seeking  to  prevent  the  Denver  Water  Board 
from  constructing  large  water  treatment  and  supply  facilities  in 
the  Rocky  Mountains  which  could  cause  substantial  environmental 
damage  and  would  be  unnecessary  if  reasonable  water  conservation 
measures  were  adopted.   National  Wildlife  Federation  v.  Andrus 
(D.D.C).   The  case  involved  claims  that  the  EIS  inadequately 
considered  cumulative  impacts,  alternatives,  and  secondary 
impacts;  that  the  EIS  contained  grossly  inaccurate  data;  and  that 
the  proposal  was  approved  in  violation  of  the  Federal  Lands 
Policy  Management  Act  and  Section  404  of  the  Federal  Water 
Pollution  Control  Act.   The  case  was  settled  when  the  Denver 
Water  Board  agreed  to  adopt  conservation  measures,  to  establish  a 
continuing  advisory  Board  which  would  include  members  of 
environmental  groups,  to  review  and  comment  upon  the  Board's 
development  plans,  to  take  other  actions  to  provide  more  public 
participation  in  its  decision-making  process,  and  to  pay  the 
attorneys'  fees  of  plaintiffs. 

In  Oudes  v.  Block,  a  landowner  in  West  Virginia  sued  to 
enjoin  construction  of  a  small  dam  on  the  ground  that  the  United 
States  Department  of  Agriculture  and  Soil  Conservation  Service 
failed  to  prepare  an  environmental  impact  statement  adequately 

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assessing  the  impact  of  the  project.   The  district  court 
transferred  the  case  to  West  Virginia.   516  F.  Supp.  13  (D.D.C. 
1981) .   The  West  Virginia  court  denied  the  injunction  and  granted 
summary  judgment  for  the  defendant. 

FORESTS  AND  PARKS 

West  Virginia  Division,  of  Izaak  Walton  League  v.  Butz  was 
brought  by  the  Izaak  Walton  League,  Sierra  Club,  Natural 
Resources  Defense  Council  and  others  to  enjoin  the  "clear- 
cutting"  practices  of  the  Forest  Service  in  the  Monongahela 
National  Forest.   The  district  court  and  the  court  of  appeals 
held,  under  the  Organic  Act  of  1897,  that  the  Forest  Service 
could  allow  only  the  cutting  of  mature  timber  in  national 
forests,  not  young  growing  trees,  and  that  each  tree  must  be 
individually  marked  prior  to  sale.   367  F.  Supp.  422  (D.  W.Va. 
1973),  affirmed,  522  F.2d  945  (4th  Cir.  1975).   Congress  passed 
the  National  Forest  Management  Act  of  1976  which  modified  the 
decision  but  included  forestry  requirements  providing 
substantially  more  environmental  protection  than  previously 
existed. 

Bruce  Terr is  was  chairman  of  a  committee  created  by  Senator 
Jennings  Randolph  to  draft  legislation  governing  silvi-cultural 
practices  in  the  national  forests  in  order  to  minimize 
environmental  damage  from  timber  cutting.   This  bill  was 
introduced  by  Senator  Randolph  and  Congressman  Brown.   Mr.  Terris 
testified  in  support  of  the  bill  and  we  represented  the  Coalition 
to  Save  Our  National  Forests  in  its  efforts  in  the  Congress  to 
have  the  bill  adopted.   Elements  of  that  bill  were  included  in 
the  National  Forest  Management  Act  of  1976. 

In  Sierra  Club  v.  Butz,  the  Sierra  Club  challenged  the 
decision  of  the  Forest  Service  to  permit  timber  cutting  in 
undeveloped,  roadless  areas  within  the  national  forests  without 
preparation  of  environmental  impact  statements.   The  court  issued 
a  preliminary  injunction  against  further  timber  sales  covering  50 
million  acres  of  land.   3  ELR  20071  (N.D.  Cal.  1969).   The  Forest 
Service  then  agreed  to  prepare  environmental  impact  statements 
pursuant  to  NEPA  before  allowing  development  of  the  roadless 
areas. 

Sierra  Club  v.  Butz  was  brought  under  NEPA,  the  Organic  Act 
of  1897,  and  a  variety  of  other  federal  statutes  to  prevent  the 
largest  timber  sale  in  the  United  States  in  Tongass  National 
Forest  in  Alaska.   We  participated  in  the  briefing  of  this  case 
in  the  Court  of  Appeals  for  the  Ninth  Circuit,  which  remanded  the 
case  to  the  district  court  for  further  consideration.   At  the 
request  of  the  company,  the  Forest  Service  then  canceled  the 
contract. 


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United  States  v.  Parker  involved  a  decision  by  the  Court  of 
Appeals  for  the  Tenth  Circuit  holding,  under  the  Wilderness  Act, 
that  an  area  in  a  national  forest  in  Colorado  could  not  be 
subject  to  timber  cutting  until  it  had  been  studied  for 
designation  as  a  wilderness  area.   The  government  petitioned  the 
Supreme  Court  for  a  writ  of  certiorari  and  we  wrote  the  brief 
opposing  that  petition.   The  government's  petition  was  denied. 
405  U.S.  989  (1972) . 

Sierra  Club  v.  Morton.  405  U.S.  727  (1972),  involved  the 
Sierra  Club's  standing  to  sue  to  prevent  the  construction  of  a 
large  resort  and  connecting  highways  and  electrical  transmission 
lines  by  the  Disney  Company  in  the  Mineral  King  area  of  Sequoia 
National  Park.   We  submitted  an  amicus  curiae  brief  in  the 
Supreme  Court  on  behalf  of  The  Wilderness  Society,  Izaak  Walton 
League  of  America,  and  Friends  of  the  Earth.   Although  the 
Supreme  Court  held  that  standing  had  not  been  shown,  it  remanded 
the  case  to  the  district  court  to  allow  evidence  on  this  issue  as 
our  brief  had  requested.   On  remand,  standing  was  upheld  and  the 
project  was  not  built. 

We  represented  NRDC,  the  Sierra  Club,  and  other 
environmental  organizations  which  intervened  in  Alaska  v.  Carter 
in  the  District  Court  of  Alaska.   See  462  F.  Supp.  1155  (D.  Alas. 
1978).   The  case  involved  the  efforts  of  the  State  of  Alaska  to 
invalidate  the  actions  of  the  President,  the  Secretary  of  the 
Interior,  and  the  Secretary  of  Agriculture  in  1978  to  protect 
over  100  million  acres  of  public  lands  in  Alaska  pending 
Congressional  action  to  place  the  lands  in  the  federal  land 
management  system.   Following  the  district  court's  decision  in 
Anaconda  Copper  Co.  v.  Andrus  (discussed  below)  and  the  enactment 
by  Congress  in  1980  of  the  Alaska  National  Interest  Lands 
Conservation  Act,  the  case  was  settled  on  terms  that  preserved 
all  the  lands  placed  in  1979  by  the  President  and  the  Secretaries 
of  Interior  and  Agriculture  in  the  federal  land  management 
system. 

We  represented  many  of  these  same  groups  as  intervenors  in 
Anaconda  Copper  Co.  v.  Andrus  and  Bristol  Bay  Native  Corp.  v. 
Carter  which  also  involved  industry  challenges  to  the  President's 
efforts  to  protect  Alaska  lands.   In  Anaconda  Copper  Co.  v. 
Andrus .  the  district  court  held  that  the  President's  actions 
under  the  Antiquities  Act  to  establish  national  monuments  were 
lawful.   14  ERC  1853  (D.  Alas.  1980) .   In  light  of  this  decision 
and  the  enactment  of  the  Alaska  Lands  Act,  the  plaintiffs  in 
Bristol  Bay  dismissed  their  case. 

We  were  members  of  the  Alaska  Law  Council  which  was  formed 
for  the  purpose  of  providing  legal  resources  to  protect  the 
Alaska  environment.   We  prepared  a  background  memorandum  for  the 
Council  describing  the  major  environmental  issues  facing  Alaska. 
We  also  assisted  the  Alaska  Coalition  in  relation  to  legislation 

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and  regulations  concerning  disposition  and  management  of  federal 
lands  in  Alaska. 

We  prepared  an  analysis  for  the  National  Parks  and 
Conservation  Association  concerning  the  legal  issues  raised  by 
proposed  dam  reconstruction  in  the  Grand  Teton  National  Park.   In 
particular,  we  considered  the  statutory  prohibitions  against 
mining  for  borrow  material  within  the  park's  boundaries. 

HISTORIC  PRESERVATION 

Ely  v.  Velde  involved  litigation  by  local  citizens  under 
NEPA  and  the  National  Historic  Preservation  Act  to  challenge  the 
grant  of  federal  funds  under  the  Law  Enforcement  Assistance  Act 
for  construction  of  a  prison  in  a  historic  area  of  Virginia.   We 
participated  in  the  litigation  in  the  court  of  appeals,  which 
held  that  the  grant  was  illegal  without  preparation  of  an 
environmental  impact  statement.   451  F.2d  1130  (4th  Cir.  1971). 
After  more  litigation,  the  project  was  abandoned  by  the  State  of 

Virginia. 

i 

In  Patrons  of  the  Adams  House  v.  Washington,  we  represented 
a  local  citizens  group  which  sought  injunctive  relief  to  stop  the 
demolition  of  a  house  under  consideration  for  designation  as  a 
historic  landmark.   The  Superior  Court  of  the  District  of 
Columbia  granted  injunctive  relief  pending  the  determination  by 
the  Joint  Committee  on  Landmarks  on  the  historic  status  of  the 
house.   The  house  was  subsequently  saved. 

In  Crosby  v.  Young,  we  represented  the  plaintiffs  in  an 
effort  to  prevent  the  City  of  Detroit  from  demolishing  a 
historic,  ethnic  neighborhood,  Poletown,  in  order  to  build  a  GM 
Cadillac  assembly  plant.   The  claims  brought  under  NEPA,  National 
Historic  Preservation  Act  and  the  Clean  Air  Act  were  rejected  by 
the  district  court.   512  F.  Supp.  1363  (E.D.  Mich.  1981). 

We  represented  the  Natural  Resources  Defense  Council,  Save 
Our  Broadway  Committee,  Actors  Equity  and  seven  other  theater 
unions  in  challenging  the  destruction  of  two  historic  theaters  in 
New  York  City,  the  Helen  Hayes  and  the  Morosco,  for  construction 
of  a  hotel.   Suit  was  brought  in  both  federal  and  state  court 
under  NEPA,  the  New  York  State  Environmental  Quality  Review  Act, 
the  National  Historic  Preservation  Act  and  the  Housing  and 
Community  Development  Act.   As  a  result  of  the  suit,  the 
Department  of  the  Interior  agreed  to  consider  the  administrative 
appeal  to  have  the  Morosco  declared  eligible  for  the  National 
Register  of  Historic  Places  and  the  theater  was  found  eligible. 
We  then  participated  in  proceedings  before  the  Advisory  Council 
on  Historic  Preservation  which  approved  a  Memorandum  of  Agreement 
allowing  the  destruction  of  the  theater.   Subsequently,  the 
district  court  denied  a  preliminary  injunction  (Natural  Resources 
Defense  Council  v.  City  of  New  York.  528  F.  Supp.  1245  (S.D.N.Y. 

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1981)),  the  court  of  appeals  reversed  that  decision  and  remanded 
for  a  partial  trial  on  the  merits  (12  ELR  20182  (2d  Cir.  1982)), 
the  district  court  again  ruled  for  the  City  (534  F.  Supp.  279 
(S.D.N.Y.  1982)),  the  court  of  appeals  affirmed  (672  F.2d  292  (2d 
Cir.  1982)  and  the  Supreme  Court  first  issued  and  then  lifted  an 
injunction  (456  U.S.  920  (1982)).   In  the  state  courts,  after 
receiving  several  temporary  injunctions,  we  lost  in  the  New  York 
Supreme  Court,  the  Appellate  Division,  and  the  Court  of  Appeals. 
Natural  Resources  Defense  Council  v.  City  of  New  York.  112 
Misc. 2d  106  (Sup.  Ct.,  N.Y.  Co.  1982),  affirmed  without  opinion, 
86  A.D.  2d  818  (1st  Dept.  1982),  leave  to  appeal  denied,  46 
N.Y. 2d  501  (1982)  .   As  a  result,  the  theaters  were  destroyed. 
However,  the  case  spurred  successful  efforts  to  confer  landmark 
status  on  other  New  York  theaters. 

LAND  USE  AND  ZONING 

Coalition  Against  Lincoln  West  v.  City  of  New  York  was 
brought  in  New  York  state  court  on  behalf  of  residents  of  the 
upper  West  Side  of  Manhattan,  challenging  the  City's  approval  of 
a  massive  residential/commercial  development  in  that  area.   The 
suit  was  based  on  violations  of  the-  New  York  State  Environmental 
Quality  Review  Act  (SEQRA)  and  the  New  York  City  Charter 
requirements  for  public  participation  in  land  use  decisions.   The 
trial  court  held  that  the  City's  environmental  impact  statement 
violated  SEQRA  because  it  failed  to  consider  reasonable 
alternatives  to  the  project.   The  Appellate  Division  reversed  and 
the  reversal  was  upheld  by  the  Court  of  Appeals.   94  A.D. 2d  483 
(1st  Dept.  1983),  affirmed,  60  N.Y. 2d  805  (1983). 

Sierra  Club  v.  Lynn.  364  F.  Supp.  834  (W.D.  Tex.  1973),  was 
brought  on  behalf  of  the  Sierra  Club  and  a  number  of  local 
organizations  challenging  a  grant  by  the  Department  of  Housing 
and  Urban  Development  for  a  new  town  which  threatened  San 
Antonio's  water  supply.   The  suit  contended  that  the 
environmental  impact  statement  was  inadequate.   The  case  was 
settled  when  the  government  agreed  to  do  additional  studies  prior 
to  disbursing  funds  and  an  new  environmental  statement  was 
prepared. 

Arlington  v.  Board  of  Supervisors  of  Fauquier  County  was 
brought  in  the  Circuit  Court  for  Fauquier  County,  Virginia, 
challenging  the  county's  approval  of  a  subdivision  in  a  rural 
area.   The  plaintiffs  contended  that  the  county  violated  its 
subdivision  ordinance  because  the  plan  was  inconsistent  with  the 
county's  comprehensive  plan  and  other  provisions  of  the  ordinance 
relating  to  septic  tanks,  roads  and  the  like.   The  circuit  court 
rejected  these  claims  and  the  Virginia  Supreme  Court  refused  to 
hear  the  case. 

Citizens  Ass'n  of  Georgetown  v.  Zoning  Commission  challenged 
as  illegal  the  rezoning  of  the  Georgetown  waterfront  to  allow 

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mixed-use  development  because  it  is  inconsistent  with  the 
comprehensive  plan  for  the  District  of  Columbia  and  was  adopted 
after  illegal  ex  parte  communications  between  the  D.C.  government 
and  waterfront  developers.   The  Superior  Court  rejected  our 
contentions.   We  appealed  to  the  District  of  Columbia  Court  of 
Appeals  which  en  banc  rejected  both  claims.   392  A.  2d  1027 
(1978)  . 

We  represented  three  Colorado  environmental  organizations  — 
Western  Colorado  Resource  Council,  Colorado  Open  Space  Council 
and  High  Country  Citizens  Alliance  —  and  two  national 
environmental  organizations  —  Friends  of  the  Earth  and  the 
Wilderness  Society  —  in  a  challenge  to  a  land-use  plan  prepared 
by  the  Bureau  of  Land  Management  for  part  of  the  North  Fork 
Valley  in  western  Colorado.   The  issues  involved  the  right  of 
affected  citizens  to  raise  such  a  challenge  and  the  duties  of  the 
BLM  under  NEPA,  the  Federal  Land  Policy  and  Management  Act,  and 
the  Mineral  Leasing  Act  with  regard  to  land-use  planning.   This 
challenge  was  rejected  at  the  agency  level. 

We  represented  a  group  of  citizens  in  Charles  County, 
Maryland,  who  opposed  a  proposed  outdoor  shooting  range  which  was 
to  be  located  within  one  mile  of  the  site  of  the  largest  Great 
Blue  Heron  rookery  on  the  Atlantic  Coast.   As  a  result  of  this 
opposition,  the  proposal  was  withdrawn. 

We  represented  the  Community  Planning  Association  of 
Catonsville,  Maryland,  at  hearings  of  the  Planning  Board  of 
Baltimore  County  on  a  proposed  large  subdivision. 

We  advised  a  citizens  group  in  King  George  County,  Virginia, 
concerning  its  opposition  to  proposed  sand  and  gravel  mining 
operations  on  prime  agricultural  farm  land.   We  analyzed  whether 
the  developers  had  procured  valid  permits  under  federal,  state 
and  local  law. 

We  represented  a  group  of  citizens  in  McLean,  Virginia,  who 
sought  to  persuade  the  County  of  Fairfax  to  reguire  a  developer 
to  revise  his  construction  plans  to  make  the  development  more 
compatible  with  the  surrounding  environment. 

NOISE 

We  served  as  technical  consultants  to  an  EPA  project  which 
was  preparing  a  manual  on  noise  enforcement  litigation  by  state 
and  local  prosecutors. 

ENVIRONMENTAL  TORT  LITIGATION 

We  advised  residents  in  Maryland  concerning  possible 
environmental  tort  litigation  relating  to  fluids  emitted  by  an 
aluminum  reduction  plant. 

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Bruce  Terr is  advised  the  Canadian  St.  Regis  Band  of  Mohawk 
Indians  concerning  the  appropriateness  of  a  proposed  settlement 
of  environmental  tort  litigation  brought  by  the  Band  against  a 
large  aluminum  company  relating  to  the  emission  of  fluorides. 
Mr.  Terr is  recommended  that  the  settlement  be  approved.   The  Band 
approved  the  settlement. 

In  June  1980,  Bruce  Terr is  spoke  at  a  conference  in  Berlin, 
concerning  the  environmental  law  of  Germany  and  the  United 
States,  on  the  American  law  of  nuisance.   He  subsequently  gave 
talks  in  three  other  German  cities  on  behalf  of  the  United  States 
government  on  American  environmental  law. 

In  March  1989,  Bruce  Terris  participated  in  the  Thirteenth 
Annual  United  States  District  Court  Judicial  Conference  on  a 
panel  with  judges  and  leading  attorneys  chaired  by  Fred  Friendly 
discussing  a  hypothetical  environmental  tort  case. 

MISCELLANEOUS  LITIGATION 

We  represented  a  number  of  environmental  and  other  citizens 
groups  in  Natural  Resources  Defense  Council  v.  SEC.   The  court 
reversed  the  district  court's  order  that  the  SEC  conduct  further 
rulemaking  proceedings  as  to  whether  it  should  require  additional 
disclosures  from  corporations  concerning  the  impact  of  their 
activities  on  the  environment  and  their  compliance  with  equal 
employment  opportunity  statutes.   606  F.2d  1031  (D.C.  Cir.  1979). 
However,  the  court  based  its  decision  in  part  on  the  commitment 
of  the  SEC  to  consider  further  actions  in  these  areas. 

In  Prince  George's  County  v.  Holloway.  we  represented  a 
group  of  employees  of  the  Naval  Oceanographic  Office  which  was 
being  transferred  from  Maryland  to  Mississippi.   The  district 
court  issued  a  preliminary  injunction  against  that  transfer  on 
the  ground  that  the  environmental  impact  statement  was  inadeguate 
under  NEPA.   404  F.  Supp.  1181  (D.D.C.  1975). 

MISCELLANEOUS  OFFICE  ACTIVITIES 

We  have  advised  the  Environment  Protection  Agency  of  the 
State  of  Israel  concerning  American  laws  and  regulations 
requiring  an  examination  of  the  environmental  impact  on  Israel  of 
U.S. -funded  projects  in  neighboring  countries  and  on  mechanisms 
that  have  been  used  to  resolve  environmental  disputes  between 
such  countries. 

Bruce  Terris  spoke  in  1989  at  an  international  conference  in 
Israel  on  the  subject  of  citizen  litigation  in  the  United  States. 
As  a  result,  interest  was  raised  in  legislation  in  Israel  to 
encourage  citizen  environmental  suits.   Terris  assisted  an 
Israeli  lawyer  in  preparing  a  bill  which  would  expand  citizen 

26 


335 


standing  in  environmental  suits,  provide  for  the  payment  of 
attorneys'  fees  to  citizen  plaintiffs,  and  give  other  rights  to 
citizens  bringing  all  types  of  environmental  litigation.   The 
bill  has  been  introduced  in  the  Knesset  and  passed  its  first  test 
in  committee. 

Bruce  Terris  spoke  on  environmental  citizen  litigation  at 
the  Fifteenth  Annual  Conference  on  the  Environment  sponsored  by 
the  Standing  Committee  on  Environmental  Law  of  the  American  Bar 
Association. 

Mr.  Terris  has  spoken  on  air  quality  and  NEPA  litigation  at 
several  environmental  law  seminars  sponsored  by  the  American  Law 
Institute  and  the  American  Bar  Association. 

Carolyn  Smith  Pravlik  served  on  the  Advisory  Panel  to  the 
United  States  Sentencing  Committee  for  review  of  the  United 
States  Sentencing  Guidelines  on  environmental  crimes. 

Kathleen  L.  Millian  spoke  on  environmental  citizen  suits  in 
February  1993  at  the  American  Law  Institute/American  Bar 
Association's  annual  course  on  Environmental  Law. 

We  have  appeared  at  numerous  Congressional  hearings, 
administrative  hearings,  meetings,  and  seminars  concerning  NEPA, 
the  Clean  Air  Act,  the  Clean  Water  Act,  and  the  recovery  of 
attorneys'  fees  under  environmental  and  other  statutes. 

We  have  prepared  comments  on  numerous  draft  environmental 
impact  statements  and  environmental  assessments  including  on  coal 
development  and  related  railroad  construction  in  eastern  Wyoming, 
a  coal  strip  mine  in  Montana,  the  national  coal-leasing  program, 
oil  and  gas  leasing  in  the  Beaufort  Sea,  oil  platforms  in 
California,  phosphate  mining  in  Idaho,  a  dam  in  Washington,  an 
LNG  facility  in  New  York,  a  geothermal  project  in  New  Mexico,  and 
the  Channel  Island  Marine  Sanctuary  in  the  Santa  Barbara  Channel 
off  California. 

Bruce  Terris  has  served  on  the  legal  advisory  committees  of 
Friends  of  the  Earth  and  the  Environmental  Defense  Fund. 

The  firm  received  the  Law  Conservationist  of  the  Year  Award 
from  the  National  Wildlife  Federation  for  1982. 


27 


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BRUCE  J.  TERRIS 
CAROLYN  SMITH  PRAVUK 
MONICA  WAGNER 
KATHLEEN  L.  MILUAN 


TERRIS.  PRAVLIK  &  WAGNER 

1121    12TM  STREET.  N.W. 

WASHINGTON.  O.C  20003-4632 

(202>  682-2  lOO 

MO/TELEX  202-267-S34I 

FAX:  202  289-6795 


ROBERT  O.  PARRISH 
MARK  V.  OUGAN 
EUSABETH  J.  LYONS 
ROCHELLE  BOBROFF 
ZDENA  NEMECKOVA* 
ERCIA  A  BILSKY 
SCOTT  M  DUB1N* 
J.  MARTIN  WAGNER 


■NOT   AOMTTCO  TO  OC  SAN 


December  3,  1993 


Lois  Schiffer 

Acting  Assistant  Attorney  General 

Environment  and  Natural  Resources  Division 

Department  of  Justice 

10th  Street  &  Constitution  Avenue,  N.H. 

Room  2143 

Washington,  D.C.   20530 

Dear  Ms^^Sohiffer: 

I  am  writing  to  thank  you  for  meeting  with  groups  involved  in 
citizen  suit  litigation  under  the  Clean  Water  Act  (CWA) .  The 
citizen  groups  were  pleased  with  the  government's  interest  and 
openness,  and  we  all  look  forward  to  working  with  you  in  the 
future. 

I  am  also  writing  to  follow  up  on  the  discussion  regarding  the 
sharp  difference  between  the  Department  of  Justice's  litigation  of 
CWA  cases  as  a  plaintiff  and  as  a  defendant.  In  our  lawsuits 
against  the  United  States  in  Friends  of  the  Earth.  Inc..  et  al.  v. 
Hazel  O'Learv.  et  al..  E.D.  Term. ,  CIV-3-92-036  (hereafter,  the 
"Oak  Ridge  Litigation") ,  and  Public  Interest  Research  Group  of  New 
Jersey.  Inc..  et  al.  v.  Michael  P.W.  Stone.  D.N.J. ,  Civil  No.  91- 
5583  (hereafter,  the  "Fort  Dix  Litigation"),  D0J  has  made  a  number 
of  arguments  which  directly  conflict  with  positions  D0J  has  taken 
as  a  plaintiff  in  Clean  Water  Act  cases. 

For  example,  in  the  Oak  Ridge  Litigation,  D0J  has  made  the 
following  arguments: 

•  Defendants  need  not  achieve  100  percent  compliance 
with  their  NPDES  permits;  rather,  a  good  faith 
effort  to  attain  100  percent  compliance  is 
sufficient.  See  United  States'  Opposition  to 
Plaintiffs'  Motion  for  Summary  Judgment  and 
Memorandum  in  Support  of  United  States'  Cross-Motion 
for  Summary  Judgment  (hereafter  "U.S.  Opposition") 
(January  13,  1993),  pp.  12,  21-22,  28-29;  see  also 
Deposition  of  Leonard  Vaughan  (Supervisor  of  the  CWA 
environmental  management  department  at  the  Y-12 
plant) (August  24,  1993),  p.  90  ("[The  permit  is] 
basically  to  give  you  a  carrot  to  work  towards") . 


t  •*  ion  •»*■»«'  *m 


337 


Lois  Schiffer 
December  3,  1993 
Page  2 

•  An  oral  or  written  statement  from  the  Tennessee 
Department  of  Energy  and  Conservation  (TDEC)  is 
sufficient  to  modify  defendants'  permits.  See 
Deposition  of  David  Buhaly  (August  25-26,  1993),  p. 
128  ("A  letter  [from  TDEC]  is  considered  a 
modification  to  a  permit"). 

•  Defendants'  have  historically  interpreted  the  permit 
requirement  of  "daily"  monitoring  to  require  only 
work  week  sampling;  TDEC  has  informally  acknowledged 
this  interpretation.   U.S.  Opposition,  p.  25. 

•  Although  defendants  continue  to  violate  the 
discharge  limitations  of  their  permits,  plaintiffs' 
complaint  is  moot  since  defendants  have  taken 
corrective  action  since  plaintiffs  filed  their 
complaint.   U.S.  Opposition,  p.  33. 

DO  J  has  rejected  these  same  arguments  in  CWA  cases  against 
private  polluters.  For  example,  with  regard  to  permit  compliance, 
DOJ  has  long  successfully  argued  that  100  percent  compliance  is 
required.  See  American  Petroleum  Institute  v.  E.P.A..  540  F.2d 
1023,  1036  (10th  Cir.  1976);  United  States  v.  Amoco  Oil  Co. .  580 
F.Supp.  1042,  1050  (W.D.  Mo.  1984). 

Similarly,  DOJ  has  argued,  again  successfully,  that  informal, 
unilateral  actions  such  as  letters  from  state  regulatory 
authorities  like  TDEC  are  insufficient  to  modify  a  permit.  See 
United  States  v.  Ohio  Edison  Co..  725  F.  Supp.  928,  933  (N.D.  Ohio 
1989) ;  United  States  v.  Metropolitan  District  Commission.  23  ERC 
1350,  1355  (D.  Mass.  1985).  As  plaintiffs,  DOJ  would  reject  the 
contention  that  TDEC's  informal  acknowledgment  of  defendants' 
practice  as  to  "daily"  sampling  modified  defendants'  permits. 

DOJ  has  also  argued  that  a  defendant  bears  an  extremely  heavy 
burden  in  showing  mootness.  As  amicus  curiae  in  Gwaltnev  v. 
Chesapeake  Bav  Foundation.  484  U.S.  49  (1987),  DOJ  argued  that 
defendant,  although  then  in  full  compliance  with  its  KPDES  permit, 
did  not  establish  mootness  where  it  did  not  raise  its  claim  of  full 
compliance  until  nearly  one  year  after  the  complaint  was  filed. 
See  Brief  for  the  United  States  as  Amicus  £yrias  Supporting 
Affirmance  (May  1987),  pp.  28-29.  In  this  case,  however,  even 
though  defendants  have  ongoing  violations,  DOJ  has  claimed 
mootness. 

In  addition  to  taking  positions  in  the  Oak  Ridge  Litigation 
which  it  has  rejected  in  its  own  enforcement  cases,  DOJ  has  taken 
positions  which  are  inconsistent  with  EPA  policy.  Such  positions 
include  the  following: 

•  A  single  sample  analysis  cannot  be  used  to  determine 
compliance  with  a  weekly,  monthly  or  quarterly 
average  limit.  U.S.  Opposition,  Affidavit  of  David 
Buhaly,  para.  8. 


338 


Lois  Schiffer 
December  3,  1993 
Page  3 

•  Despite  the  fact  that  defendants'  state 
certification  letters  require  compliance  with  state 
water  quality  control  criteria,  compliance  is  not  _ 
required  where  the  state  criteria  are  more  stringent 
than  permit  requirements.1  Buhaly  Deposition,  pp. 
125-126.  ;, 

•  Defendants'  violations  of  the  discharge  limitations 
of  their  permits,  including  fish  kills,  have  not 
resulted  in  irreparable  harm.  U.S.  Opposition, 

pp.  58-62. 

These  positions  are  inconsistent  with  EPA's  position.  For 
example,  if  DOJ's  argument  that  a  single  sample  cannot  be  used 
to  determine  an  average  limit  is  taken  to  its  logical  conclusion, 
a  defendant  would  never  report  an  average  sample  for  a  given  time 
period  whenever  its  NPDES  permit  only  required  one  sample  over  that 
period.  That  EPA  does  not  contemplate  this  illogical  result  is 
made  clear  in  its  NPDES  Self-Monitoring  System  Dser  Guide  (January 
1985)  .  In  the  instructions  for  completion  of  discharge  monitoring 
reports,  the  guide  states:  "* Average'  is  normally  arithmetic 
average  (geometric  average  for  bacterial  parameters)  of  all  sample 
measurements  for  each  parameter  obtained  during  the  monitoring 
period."  Id. ,  P-  14.  Therefore,  if  a  single  sample  is  taken 
during  a  month- long  monitoring  period,  that  sample  would  be  the 
monthly  average.2 

Similarly,  DOJ's  view  that  defendants  are  not  required  to 
comply  with  state  water  quality  criteria  contradicts  EPA 
regulations.  See  40  C.F.R.  123.259(a).  That  regulation  plainly 
states:  "In  all  cases,  States  are  not  precluded  from  omitting  or 
modifying  any  provision  to  impose  more  stringent  requirements." 

Finally,  DOJ's  contention  that  the  pollutants  which  defendants 
discharged  in  violation  of  their  NPDES  permit  limits  (e.g. . 
chromium,  zinc,  PCBs,  and  copper)  do  not  cause  irreparable  harm 
directly  contradicts  EPA's  view  of  these  same  pollutants.  See  52 
Fed.  Reg.  12889  (April  17,  1987);  EPA,  Quality  Criteria  for  Water 
(July  1986) . 

In  the  Fort  Dix  Litigation  we  filed  a  motion  for  contempt 
because  of  the  United  States'  violations  of  the  Consent  Decree 
which  required  full  compliance  with  the  NPDES  permit  for  the 
Pedricktown,  New  Jersey  facility.  In  response,  the  United  States 
admitted  that  it  had  violated  the  permit  and  thus  the  Consent 


xWhile  DOJ  has  not  discussed  this  issue  in  its  court  papers, 
it  has  contended  orally  that  defendants  need  not  comply  with  state 
water  quality  criteria. 

2  The  courts  do  not  accept  this  illogical  result  either.  See 
Natural  Res.  Defense  Coun.  v.  Outboard  Marine  Corp..  692  F.  Supp. 
801,  820-821  (N.D.  111.  1988). 


339 


Lois  Schiffer 
December  3,  1993 
Page  4 

Decree  in  April,  May  and  June  1993,  but  nade  the  following 
arguments  in  opposition  to  our  motion  for  contempt  (United  States' 
Opposition  to  Plaintiffs'  Motion  to  Have  Defendant  Held  in  Contempt 
of  the  Court's  Order  of  March  24,  1993  ("U.S.  Opposition"),  October 
5,  1993):  •■ 

•  The  FSOD  and  TSS  percent  removal  requirements  which  the  /. 
United  States  violated  were  not  important  for  the  ?? 
protection  of  the  environment  and  the  United  States'  .'-'-'■'-- 
compliance   with   the   concentration   and   loading 
parameters  of  its  MPDES  permit  excused  its  violations 

of  the  percent  removal  requirements.   U.S.  Opposition 
5-8. 

•  The  percent  removal  requirements  in  the  permit  may  be  too 
stringent  considering  the  weakness  of  the  influent  to  the 
wastewater  treatment  plant.  "The  U.S.  Environmental 
Protection  Agency's  regulations  recognize  that  diluted 
influent  can  cause  violations  of  percent  removal 
requirements,  and  that  permit  modification  may  be 
appropriate  in  such  circumstances."  U.S.  Opposition  8. 

DOJ's  first  argument  above  seeks  to  have  the  Court  discount 
the  United  States'  violations  of  certain  terms  of  the  permit 
because  it  believes  that  other  terms,  with  which  the  United  States 
complied,  are  more  important.  This  argument  undermines  the 
regulatory  scheme  set  out  in  the  permit  which  adopts  three  separate 
mechanisms  for  regulating  FSOD  and  TSS. 

DOJ's  second  argument  amounts  to  no  more  than  an  attack  on  the 
terms  and  conditions  of  a  permit  which  cannot  be  made  in  an 
enforcement  proceeding.  33  U.S.C.  1369(b)(2);  PIRG  v.  Powell 
Duffrvn  Terminals  Inc..  913  F.2d  64,  78  (3rd  Cir.  1990),  certiorari 
denied,  498  U.S.  1109  (1991) .  DOJ  made  no  claim  that  the  United 
States  had  actually  sought  a  modification  to  its  permit. 

If  DOJ  is  successful  in  taking  anti-environmental  positions, 
the  principal  result  will  be  to  make  it  more  difficult  to  enforce 
the  law  against  non- federal  polluters.  More  important,  however, 
DOJ's  inconsistency  undermines  the  integrity  of  the  federal 
governments  enforcement  of  environmental  laws.  The  federal 
government  should  be  setting  an  example  in  its  compliance  with 
federal  environmental  laws,  not  raising  issues  which,  interfere 
with  effective  enforcement.  The  positions  described  above  are  no 
different  than  those  taken  by  private  polluters.  I  submit  that  the 
environmental  community,  and  the  public  in  general,  have  a  right  to 
expect  more  of  the  federal  government. 


340 


Lois  Schiffer 
December  3,  1993 
Page  5 

I  hope  that  we  can  work  together  with  DO  J  to  establish  greater 
uniformity  in  CWA  litigation  policy. 

Thank  you  for  your  consideration. 

Very  truly  yours, 


Bruce  J.  Terr is 


341 


Tennis.  Pravuk  *  Waoncm 

BftUCCJ  TC«««  Ml  ItT-tTKSCT.NW.  NOKKI O.  PAfiMtK 

CANOLTN  tMITH  PAAWM  WASMINOTOH.  0  C  tOOO»-««Jt  HA/WVOOOAW 

MONICA  WAOMCft  (lODUItXM  SU*AM  J.  McOCtMCK 

KATXtCCMt.MU.tlA*!  HCI/TCie*  *0*-I«7-6»*  Ctl*A«CTM  J.  tVOM 

fax  iomw^tk  wocmcuc  •onorr 

ZOCNA  nCmC&XOVA* 
-  CWCfcD»L*Kr 

•OOTTM-OUtlM* 
J.  MARTIN  WAONCN 


■wot  aomttco  o  c  *«* 


October  27,  1993 


Lois  Schiffer 

Acting  Assistant  Attorney  General 

Environment  and  Natural  Resources  Division 

Department  of  Justice 

10th  and  Constitution  Avenue,  N.W. 

Room  2143 

Washington,  D.C.  20530 

Dear  Ms.  Schiffer: 

On  March  31,  1993,  In  PIRG  v.  Hercules-  O.N.J.  C.A.  Mo.  89- 
2291,  the  District  Court  for  the  District  of  New  Jersey  Issued  a 
decision,  holding  that,  under  Section  505(b)  of  the  Water  Act  and 
EPA's  regulations  regarding  notice  (40  C.F.R.  135(a)),  the  court 
did  not  have  subject  Batter  jurisdiction  over  pre -complaint 
violations  which  were  not  specifically  listed  in  plaintiffs'  60-day 
notice  letter  or  over  post-complaint  violations  which  were  not  of 
the  same  type  as  those  included  in  the  notice  letter.  The  court 
therefore  dismissed  many  discharge  violations  and  all  the 
monitoring,  reporting  and  recordkeeping  violations. 

Plaintiffs  moved  the  district  court  for  certification  of  an 
interlocutory  appeal  to  the  Court  of  Appeals  for  .the  Third  Circuit. 
Defendant  asked  the  court  to  certify  for  appeal  the  issue  of 
whether  the  court  had  subject  matter  jurisdiction  over  the  post- 
complaint  discharge  violations  since  they  were  not  noticed.  The 
district  court  certified  both  Issues  for  appeal. ^  On  September 
23,  1993,  the  parties  petitioned  the  court  of  appeals  for 
permission  to  appeal  the  issues. 

We  anticipate  that  the  court  of  appeals  will  accept  the  issue 
for  appeal.  We  are  writing  to  ask  you  if  you  would  assist  us  in 
litigating  this  issue  by  submitting  an  amicus  curiae  brief  to  the 
court  of  appeals  in  the  event  that  the  court  decides  to  entertain 
the  appeal.  We  anticipate  that  this  case  will  have  a  major  impact 
on  citizen  suit  litigation.   Several  defendants  in  other  cases  we 


1/Copies  of  the  district  court's  original  decision  and  its  decision 
to  certify  an  interlocutory  appeal  are  enclosed. 

*rln««d  on  ion  t«cyclcd  ff/tr  oltk  MX  fo»t-Co*»f  Ihtn. 


342 


Lois  Schiffer 
October  27,  1993 
Page  2 

If  courts  do  not  have  jurisdiction  over  any  violations  except 
those  specifically  listed  in  the  60-day  notice  letters,  aany 
pending  citizen  suits  will  be  seriously  jeopardised.  Bach  tiae  a 
new  violation  is  identified  through  discovery. or  a  new  violation 
occurs  after  the  complaint  is  filed,  under  the  district  court's 
opinion,  a  new  notice  letter  would  need  .  to  be  sent.  (If 
defendant's  appeal  is  successful,  a  new  notice  letter  would  be 
required  for  all  violations  which  occur  after  the  complaint  was 
filed,  even  if  they  were  of  the  saae  type  as  those -listed  in  the 
notice  letter.)  When  the  Supreae  Court's  decision 'In  Cwaitney  ie 
coabined  with  the  decision  in  Hercules,  citizens  alght  well  be 
barred  froa  suing  on  violations  listed  in  the  new  notice  letter  if 
the  defendant  can  bring  itself  into  compliance  during  the  60-day 
notice  period.  This  Bay  frequently  be  the  case,  since  the 
defendant  will  have  had  the  60  days  of  the  original  notice  period, 
the  tiae  which  has  elapsed  during  discovery  and  the  new  60-day 
notice  period  to  bring  itself  into  compliance. 

The  Hercules  decision  is  particularly  serious  as  to  unreported 
discharge  violations  and  monitoring  and  reporting  violations. 
Since  it  is  extremely  difficult,  and  often  impossible,  to  identify 
these  types  of  violations  prior  to  discovery,  new  notice  letters 
would  be  needed  in  order  to  sue  on  these  types  of  violations  in 
almost  every  case.  At  the  same  time,  since  it  is  extremely  easy  to 
correct  such  violations  within  a  60-day  period,  a  serious  Cwaitney 
problem  will  often  exist.  While  citizens  have  a  good  argument 
under  the  decision  of  the  Pourth  Circuit  in  Sierra  Club  v.  Slmxins 
Industries.  Inc..  847  P. 2d  1109  (4th  Cir.  1988),  certiorari  denied, 
491  U.S.  904  (1989),  that  monitoring  and  reporting  violations  are 
continuing  in  nature  and  therefore  cannot  be  barred  under  Cwaitney. 
it  is  by  no  means  certain  that  this  argument  will  be  successful. 

We  believe  that  an  amicus  brief  from  EPA  would  be  extremely 
helpful.  EPA  has  often  recognized  that  citizen  suit  litigation  is 
an  important  part  of  enforcement  of  the  Water  Act.  An  amicus  brief 
submitted  by  EPA  could  stress  the  important  role  of  citizen  suits 
in  the  enforcement  of  the  Water  Act  and  the  effect  on  enforcement 
of  the  Act  if  citizen  suits  were  limited. 

Moreover,  the  district  court  relied  in  large  part  on  EPA's 
regulations  regarding  notice.  An  amicus  brief  could  explain  the 
purpose  of  EPA's  regulations  concerning  notice  and  emphasize  that 
they  are  intended,  as  we  understand  them,  mainly  to  provide  the 
government  with  an  opportunity  to  initiate  enforcement  action 
before  citizens,  and  not  to  protect  defendants  from  citizen  suits. 


343 


Lois  Schif fer 
October  27,  X993 
Pag*  3 

If  you  are  abla  to  assist  us  or  are  interested  in  discussing 
the  issue,  please  call  us.  Thank  you  for  your  attention  to  this 
Batter.  -  *» 


Sincerely, 


Carolyn  Saith  Pravlik 
Elisabeth  J.  Lyons 


Enclosures 

cc:  David  Drelich 
Nancy  K.  Stoner 


344 


OFFICE  Or  THE  CLERK 

United  States  Court  of  Appeals 

P.  DOUGLAS   SISK  TELEPHONE 

o_ckk  FOR  THE  THRO  CIRCUIT  11«<M7<2«tt 

2 1400UNrTED  STATES  COURTHOUSE 

COI  MARKET  STREET 
PHIL  A  OELPHIA.  PA  I  9 1 06  •  1 700 

AMENDED    7/5/94 

TO   INCLUDE   SERVICE 

June   13,    1994 


Ms.  Susan  Lipow    (Mall  Stop  2355) 
Associate  General  Counsel,  Hater  Division 
Office  of  General  Counsel 
Environmental  Protection  Agency 
401  "M"  Street,  S.W. 
Washington,  D.C.   20460 

RE:        Public  Interest  Research  Group  of  NJ.  Inc. 
v.  Hercules,  Inc. 
Nos.  93-5720/21 
Listed:   Tuesday,  July  12,  1994 

Dear  Ms.  Lipow: 

This  will  confirm  our  conversation  this  afternoon 
regarding  the  above-entitled  matter. 

In  the  case  set  forth  above,  which  is  before  this  court 
on  an  interlocutory  appeal  pursuant  to  U.S.C.  28  S  1292(b),  the 
parties  have  differing  interpretations  with  respect  to  the 
regulation  promulgated  by  the  Environmental  Protection  Agency  at 
40  C.F.R.  S  135.3  pursuant  to  33  U.S.C.  S  1365(b)(1).  The  briefs 
submitted  by  counsel  are  enclosed  for  your  information.   The 
court  believes  that  the  views  of  the  Environmental  Protection 
Agency  would  be  helpful.   Therefore,  the  Court  requests  that  you 
file  a  brief  amicus  curiae,  if  possible  by  June  30,  1994,  and 
serve  copies  upon  counsel. 

The  Court  appreciates  your  efforts  in  this  matter,  and 
if  you  have  any  questions,  kindly  contact  me  at  (215)  597-3128. 

Very  truly  yours, 


P.  DOUGLAS'S  I SK 
Clerk 


/b 

Enclosures 

cc:      Joel    Schneider,    Esq. 

(Carolyn  S.    Pravllk,    Esq. 
(Bruce   J.    Terrls,    Esq. 


345 

U&  Department  JJwtict 


PRS 
90-1-24-177-254 


HuHftm.  dC  XSX 


June  27,  1994 

Mr.  P.   Douglas  Sick 

Cleric 

United  States  Court  of  Appeals 

for  the  Third  Circuit 
21400  United  States  Courthouse 
601  Market  Street 
Philadelphia,  Pa.  19106-1790 

* 

RE:   Public  Interest  Research  Group  of  K.J.  Inb. . 
v.  Hercules.  Inc..  Nos.  93-5720  and  93-5721 
Listed:  Tuesday,  July  12,  1994 

Dear  Mr.  Sis*: 

This  vill  confira  our  conversation  of  Friday  afternoon 
regarding  the  participation  by  the  United  States,  as  amicus 
curiae,  in  the  above-entitled  aatter. 

Having  received  the  request  from  the  Court  for  the 
views  of  the  United  States,  ve  shall,  of  course,  file  a  brief. 
As  I  indicated  to  you,  however,  the  United  States  has  been  aware 
of  this  litigation  as  it  progressed  in  the  distriot  court.  We 
considered  amicus  participation  at  that  stage,  but  declined  to  do 
so  for  lack  of  a  united  position  that  all  affected  components  of 
the  federal  government  could  support.  The  pending  Court  of 
Appeals  request  will  require  us  to  develop  and  coordinate  that 
position  on  very  short  notice. 

Because  of  the  nature  of  the  issue,  several  components 
of  the  Environmental  Protection  Agency  are  involved  in  fashioning 
the  amicus  brief.  A  final  decision  for  EPA  on  what  its  regula- 
tion means  in  this  context  may  need  to  be  made  by  the  Administra- 
tor. Moreover,  because  the  issue  also  has  application  to 
federally  owned  facilities  that  could  be  the  subject  of  future 
citizen  suits,  our  brief  will  need  to  be  coordinated  with  the 
Department  of  Defense  and  the  Department  of  Energy. 


346 


-  a  - 

For  these  reasons,  ««  reluctantly  conclude  that  it 
would  be  impossible  to  file  a  helpful,  responaive  brief  within 
the  tiae  originally  allotted  by  the  Court 'a  latter  of  June  13, 
1994.  Mindful  that  the  oaaa  haa  been  eat  for  argument,  wa  ask 
the  Court' a  permission  to  file  our  brief  no  later  than  July  7, 
1994. 

Thank  you  for  your  consideration  of  this  setter. 

Sincerely, 


Peter  *.  Steenland,  Jr.  S/^S 
Chief,  Appellate  Section  (S  J 
Environment  and  Natural  Resources 

Division 
Department  of  Justice 
P.O.  Box  23795  (L'Bnfant  Station) 
Washington,  O.C.   20026 
(202)  514-2748 


347 

IN  THE  UNITED  STATES  COURT  OF  APPEALS 
FOR  THE  THIRD  CIRCUIT 


Nos.  93-5720  and  93--5721 


PUBLIC  INTEREST  RESEARCH  GROUP 
OF  NEW  JERSEY,  INC.,  AND  FRIENDS  OF  THE  EARTH,  INC., 

Appel lants/Cross-Appel lees , 

v. 

HERCULES    INCORPORATED, 

Appellee/Cross-Appellant. 


ON  APPEAL  FROM  THE   UNITED  STATES    DISTRICT   COURT 
FOR  THE   DISTRICT  OF  NEW  JERSEY 


BRIEF   FOR  THE   UNITED  STATES  AS   AMICUS   CURIAE 


-LOIS  J.    SCHIFFER 

Acting  Assistant  Attorney  General 

ELLEN  J.    DURKEE 
EVELYN  S.    YING 

Attorneys.    Department  of  Justice 
Environment  j  Natural  Resources 
Division 

Washington.    D.C. 2Q530 

t202)    S14-2754 


JULY    1994 
90-1-24-177-254 


348 


IHOtX 

PAGE 
Interest  of  the  United  States  1 

* 

Statement — ■ 2 

A.  The  statutory  scheme  of  the  Clean  Hater  Act  —  3 

B.  The  present  citizen  suit 5 

Discussion  — — 7 

A.  Notice  must  provide  sufficient  information  to 
permit  identification  of  the  specific 
standards  and  limitations  alleged  to  have  been 
violated io 

B.  While  notice  should  be  required  for  violations 
that  cannot  be  detected  from  public  records, 
the  district  court  should  facilitate  discovery 
of  6uch  violations : 13 

C.  Later-occurring  continuous  or  intermittent 
violations  already  mentioned  in  prior  notices 
need  not  be  listed  in  subsequent  notice 
letters — \$ 

Conclusion 18 

Certificate  of  Service 

CITATIONS 

CASES! 

EPA  v.    California  ex  rel.    State  Water  Resources 

Control    Bd.  .    426   U.S.    200    (1976)    3 

Gwaltnev  of  Smithfield.    Ltd.    v.    Chesapeake   Bav  Found. 

Inc.  .  484  U.S.  49  (1987)  8,17 

Hallstrom  V.  Tillamook  County.  439  U.S.  20  (1989) 8 

National  Environmental  Found,  v.  ABC  Rail  Corp.. 

926  F.2d  1096  (11th  Cir.  1991)  8 

Natural  Resources  Defense  Council  v.  Texaco  Refining 

&  Mkto..  2  F.3d  493  (3d  Cir.  1993)  12 

Qppenheimer  Fund.  Inc.  v.  Sanders.  437  U.S.  340 

(1978)  14 

Town  of  Norfolk  v.  United  States  Armv  Corps  of 

Engineers,  968  F.2d  1438,  1459  (1st  Cir.  1992)  2 

United  States  v.  Farley.  11  F.3d  1385  (7th  Cir. 

1993)  14 


349 


PAGE 


fiAJEfll 

United  States  v.    Providence  Journal   Co., 


485   U.S.    693,    706    (1987)- 

Walls  v.  Waste  Resource  Corp.. 


761  P.26T  311 


(6th  Cir.  1985) 


9 


gT*TPTEfl.  ROLES  and  REQDLATIONSt 


Clean  Water  Act,  33  U.S.C.  1251 
Section  101(a),  33  U.S.C. 
Section  301(a),  33  U.S.C. 
Section  308(b),  33  U.S.C. 
Section  308(c),  33  U.S.C. 
Section  309,  33  U.S.C. 


et  seq. 
1251(a)  - 
1311(a)  - 
1318(b)  - 
1318(c)  - 


28  U. 
Fed. 
40  C. 
40  C. 
40  C. 
40  C. 
40  C. 


40 
40 


1319 

Section  309(g)(6),  33  U.S.C.  1319(g)(6)  

Section  313,  33  U.S.C.  1323  

Section  402,  33  U.S.C.  1342  

Section  402(a),  33  U.S.C.  1342(a)  

Section  402(a)(2),  33  U.S.C.  1342(a)(2)  

Section  402(b)(7),  33  U.S.C.  1342(b)(7)  

Section  502(12),  33  U.S.C.  1362(12)  

Section  505,  33  U.S.C.  1365  

Section  505(a),  33  U.S.C.  1365(a)  

Section  505(a)(1),  33  U.S.C.  1365(a)(1)  

Section  505(a)(1)(A),  33  U.S.C.  1365(a)(1)(A) 

Section  505(b),  33  U.S.C.  1365(b)  

Section  505(b)(1)(B),  33  U.S.C.  1365(b)(1)(B) 

Section  505(C)(3),  33  U.S.C.  1365(C)(3)  

Section  505(f),  33  U.S.C.  1365(f)  

Section  505(f)(6),  33  U.S.C.  1365(f)(6)  

S.C.  516-519  

R.  Civ.  P.  15  

F.R.  122.41(j)  

F.R.  122.41(j) (2)  

F.R.  122.4(1)  

F.R.  135  

F.R.  135.3  

F.R.  135.3(a)  

F.R.  135.1-135.4  


1,4 


.1,7 

,17 

5 

Passim 

8 

8 

4,10 

10 

2 
14 

4 
11 

4 

2 

Passim 

9 

9 


MI8CELLANEOP8: 

S.  Rep.  No.  414,  92nd  Cong.  1st  Sess.  79-80  (1971), 
reprinted  in.  1972  U.S.C. C.A.N.  3668  


12 


-  ii  - 


350 

IN  THE  UNITED  STATES  COURT  OF  APPEALS 
FOR  THE  THIRO  CIRCUIT 


Nos.  93-5720  and  93--5721 


PUBLIC  INTEREST  RESEARCH  GROUP 
OF  NEW  JERSEY,  INC.,  AND  FRIENDS  OF  THE  EARTH,  INC., 

Appellants/Cross-Appellees, 

v. 

HERCULES  INCORPORATED, 

Appe 1 1 ee/Cross-Appe 1 1 ant . 


ON  APPEAL  FROM  THE  UNITED  STATES  DISTRICT  COURT 
FOR  THE  DISTRICT  OF  NEW  JERSEY 


BRIEF  FOR  THE  UNITED  8TATE8  AS  AMICUS  CURIAE 


INTERE8T  OF  THE  UNITED  8TATES 
The  United  States  Environmental  Protection  Agency 
(*EPA")  plays  a  lead  role  in  enforcing  the  Clean  Water  Act  (*CWA» 
or  "Act"),  33  U.S.C.  1251  £t  seq.  Citizen  enforcement  provides 
an  important  supplement  to  government  enforcement  of  the  Act. 
When  responsibly  pursued,  these  private  suits  provide  a  strong 
incentive  for  regulated  entities  to  comply  with  the  Act.  The 
United  States  is  also  a  potential  defendant  in  citizen  suits 
against  federal  facilities  under  the  Act.  CWA  Section  313, 
33  U.S.C.  1323;  CWA  Section  505,  33  U.S.C.  1365. 

This  appeal  concerns  the  notice  requirements  for  a 
citizen  enforcement  action.   The  citizen  suit  provision,  Section 
505  of  the  CWA,  33  U.S.C.  1365,  requires  citizen-plaintiffs  to 


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provide  notice  to  the  EPA,  the  State,  and  the  alleged  violator  at 
least  60  days  prior  to  commencement  of  a  civil  enforcement 

action.   The  statute  also  requires  that  the  notice  be  given  in  a 

_  ■*«■ 

manner  prescribed  by  EPA  regulation. 

By  letter  dated  June  13,  1994,  this  Court  requested  the 
views  of  the  EPA  regarding  its  interpretation  of  the  notice 
requirement  set  forth  in  40  C.F.R.  135.3,  promulgated  pursuant  to 
Section  505(b)  of  the  CWA,  33  U.S.C.  1365(b).  This  brief  amicus 
curiae  is  submitted  in  response  to  the  Court's  request.!/ 

STATEMENT 

The  Clean  Water  Act  permits  private  citizens  to  bring 
civil  actions  to  enforce  the  Act's  pollution  control 
requirements.  The  present  case  involves  a  citizen  suit  brought 
under  the  Act.  The  issues  raised  in  this  interlocutory  appeal 
concern  the  notice  requirements  for  such  private  enforcement 
actions  as  set  forth  in  the  Act,  33  U.S.C.  1365(b),  and  EPA's 


1/   In  the  letter  from  the  Court  inviting  amicus  participation, 
the  Clerk  stated  that  the  views  of  the  EPA  were  solicited.  This 
brief  sets  forth  the  views  of  not  only  the  EPA,  but  other 
components  of  the  federal  government  as  well.  Therefore, 
consistent  with  the  customary  practices  of  the  Department  of 
Justice,  we  are  submitting  this  brief  amicus  curiae  for  the 
United  States.   See  28  U.S.C.  516-519  (officers  of  the  Department 
of  Justice,  under  the  direction  of  the  Attorney  General,  have  the 
responsibility  to  conduct  litigation  in  which  the  United  States 
is  a  party  or  the  United  States  is  interested) .   Indeed,  the 
Supreme  Court  has  recognized  that  a  primary  purpose  of 
centralizing  litigation  responsibility  in  the  Department  of 
Justice  is  to  assure  that  the  United  States  should  speak  with  one 
voice  'that  reflects  not  the  parochial  interests  of  a  particular 
agency,  but  the  common  interests  of  the  Government  and  therefore 
of  all  the  people.*  United  States  v.  Providence  Journal  Co..  485 
U.S.  693,  706  (1987);  Town  of  Norfolk  v.  United  States  Army  Corps 
of  Engineers.  968  F.2d  1438,  1459  (1st  Cir.  1992). 

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implementing  regulations,  40  C.F.R.  Part  135.2/ 

A.   Th«  statutory  schema  of  the  Clean  Water  Act. 
The  CWA,  creates  a  comprehensive  program  to  'restore  and 
maintain  the  chemical,  physical,  and  biological  integrity  of  the 
Nation's  waters.*  33  U.S.C.  1251(a).  As  a  part  of  that  program, 
Section  101(a)  of  the  CWA  prohibits  all  discharges  of  pollutants 
into  the  nation's  waters  except  those  made  in  compliance  with 
other  provisions  of  the  Act,  including  Section  402,  which 
establishes  the  National  Pollutant  Discharge  Elimination  System 
CNPDES*).   33  U.S.C.  1311(a),  1362(12). 

Section  402  (a)  of  the  Act  provides  that  the  EPA  shall 
issue  NPDES  permits  authorizing  effluent  discharges  in  strict 
compliance  with  conditions  specified  in  the  permit.   33  U.S.C. 
1342(a);  see  EPA  v.  California  ex  rel.  State  Water  Resources 
Control  Bd..  426  U.S.  200,  205-208  (1976).   Section  402(b)  allows 
each  State  to  develop  and  administer  its  own  permit  program, 


2/   The  district  court  certified  the  following  question  for 
interlocutory  appeal: 

Whether  this  court  correctly  decided,  pursuant  to  section 
505(b^(l)  of  the  CWA,  as  amended,  33  U.S.C.  1365(b)(1)  and 
the  accompanying  regulations  at  40  C.F.R.  135.3,  that  where 
plaintiffs  have  given  notice  of  intent  to  sue  for  various 
discharge  violations  but  no  other  type  of  violation  ( i.e. . 
monitoring,  reporting  or  recordkeeping)  this  court's  subject 
matter  jurisdiction  includes  the  noticed  violations  and  any 
post-complaint  continuing  violations  of  the  same  type  as 
those  for  which  notice  was  given,  but  not  unnoticed  pre- 
complaint  violations,  nor  post-complaint  violations  of  a 
different  type  from  those  for  which  notice  was  given. 

See  JA  972. 

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provided  that  the  program  meets  federal  requirements.   33  U.S.C. 
1342(b) . 

NPDES  permits  generally  specify  particular  effluent 
parameters,  including  permissible  concentrations  of  particular 
pollutants,  based  on  daily  .and  monthly  averages.   NPDES  permits 
also  require,  pursuant  to  Section  402(a)(2),  that  the  permittee 
monitor  its  effluent  and  submit  reports  disclosing  the  results. 
33  U.S.C.  1342(a)(2).  With  narrow  exceptions  to  protect  trade 
secrets,  the  CWA  requires  that  such  reports,  generally  known  as 
discharge  monitoring  reports,  be  made  available  to  the  public. 
See  33  U.S.C.  1318(b);  40  C.F.R.  122.41(j),  (1). 

If  an  NPDES  permit  holder  fails  to  comply  with  the 
specified  permit  conditions,  the  federal  and  state  governments 
may  take  enforcement  action.   Section  309  of  the  Act  empowers  the 
EPA  to  enforce  a  federal  or  state  permit  through  a  variety  of 
administrative,  civil,  and  criminal  mechanisms.   33  U.S.C.  1319. 
A  state  may  take  similar  action,  under  applicable  state  law,  in 
response  to  a  violation  of  a  state-issued  permit.   33  U.S.C. 
1342(b)(7). 

In  addition,  Section  505(a)  of  the  CWA  permits  private 
citizens  to  commence  a  civil  action  in  certain  situations  against 
one  alleged  to  be  in  violation  of  'an  effluent  standard  or 
limitation*  under  the  Act,  which  includes  a  federal  or  state 
NPDES  permit  or  condition  thereof.   33  U.S.C.  1365(a),  (f).   This 
provision  authorizes  the  district  courts  to  enforce  the  permit 
requirements  and  impose  civil  penalties.   See  33  U.S.C.  1365(a). 

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B.  The  present  citizen  suit. 

On  March  21,  1989,  the  New  Jersey  Public  Interest 
Research  Group  ('NJPIRG')  gave  notice  to  the  EPA,  the  New  Jersey 
Department  of  Environmental  Protection  and  Energy  ("NJDEPE') ,  and 
the  defendant,  Hercules,  Inc.  ("Hercules'),  that  it  intended  to 
file  a  citizen  suit  under  Section  505  of  the  CWA,  33  U.S.C.  1365, 
alleging  that  Hercules  had  violated  an  'effluent  standard  or 
limitation'  under  Section  505(a)(1)(A)  of  the  Act,  33  U.S.C. 
1365(a)(1)(A),  by  failing  to  comply  with  the  NPDES/NJPDES  permit 
issued  for  Hercules'  facility  in  Gibbstown,  New  Jersey.  See  JA 
144-147.  The  60-day  notice  letter  attached  a  list  of  68  specific 
violations  of  discharge  limitations  of  Hercules'  permit.   Shortly 
thereafter,  the  Friends  of  the  Earth  ('FOE')  sent  Hercules,  the 
EPA,  and  the  NJDEPE  a  notice  letter,  which  stated  that  it 
intended  to  join  NJPIRG  in  bringing  a  citizen  suit  against 
Hercules. 

On  May  24,  1989,  plaintiffs  filed  a  complaint  alleging 
that  Hercules  had  committed  numerous  violations  of  its 
NPDES/NJPDES  permit.  JA  165-187.   Plaintiffs  attached  a  list  of 
87  discharge  violations  to  the  complaint,  31  of  which  were  not 
among  those  mentioned  in  the  60-day  notice  letter  and  some  of 
which  were  violations  involving  different  pollutants  than  those 
listed  in  the  notice  letter.   JA  183-185.   During  the  course  of 
briefing,  plaintiffs  alleged  additional  violations  for  which  they 
sought  to  hold  Hercules  liable.  These  included  various 
monitoring,  reporting,  and  recordkeeping  violations  that  were  not 

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discernible  from  publicly  available  records.   These  additions 
came  in  the  form  of  several  'informal*  amendments  and 
enlargements  during  the  course  of  briefing  the  parties'  cross 
motions  for  summary  judgment.   Prior  to  the  district  court's 
March  31,  1993  ruling,  plaintiffs  had  not  filed  any  additional 
60-day  notices  or  any  amended  complaints. 

In  September  1992,  plaintiffs  moved  for  summary 
judgment  as  to  114  discharge  violations  and  614  monitoring, 
reporting  and  recordkeeping  violations.  JA  791-809.   Hercules 
sought  summary  judgment  dismissing  all  violations  other  than 
those  which  were  specifically  listed  in  the  March  21,  1989, 
60-day  notice  letter. 

In  its  March  31,  1993,  Order  and  Opinion,  the  district 
court  granted  summary  judgment  for  Hercules  as  to  all 
pre-complaint  discharge  violations  not  specifically  listed  in 
plaintiffs'  notice  letter  and  all  monitoring,  recording  and 
recordkeeping  violations.   See  NJPIRG's  Opening  Brief,  Ex.  1 
(•March  1993  Opinion')  (published  at  830  F.  Supp.  1525) .   The 
district  court  denied  Hercules'  motion  in  part,  refusing  to 
dismiss  discharge  violations  that  occurred  after  the  complaint 
was  filed.   March  1993  Opinion  at  21.   The  court  granted  summary 
judgment  for  plaintiffs  as  to  60  discharge  violations.   Id.  at 
39-40.   Plaintiffs  sought  and  were  granted  interlocutory  review 
by  this  Court  of  the  district  court's  decision  regarding  the 
sufficiency  of  plaintiffs'  pre-complaint  notice  letter.   See  JA 
971-999  (published  at  830  F.  Supp.  1549);  JA  1033. 

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DISCUSSION 

The  Clean  Water  Act,  like  most  federal  environmental 
lavs,  authorizes  private  citizens  to  bring  enforcement  actions 
against  violators  of  the  Act.   CWA  Section  505,  33  U.S.C.  1365. 
The  citizen  suit  provision  is  an  important  adjunct  to 
governmental  enforcement  efforts.  It  embodies  congressional 
recognition  that,  due  to  limited  resources,  the  federal  or  state 
government  cannot  shoulder  the  entire  burden  of  enforcement 
actions  to  bring  violators  into  compliance  with  the  Act. 

Congress,  recognizing  that  citizen  suits  should  serve 

as  a  supplement  to  government  enforcement  efforts,  placed  several 

significant  limitations  on  citizen  enforcement  authority.   In 

particular,  Section  505(b)  of  the  CWA  provides  that  no  citizen 

suit  may  be  commenced  under  Section  505(a)(1) 

prior  to  sixty  days  after  the  plaintiff  has  given 
notice  of  the  alleged  violation  (i)  to  the 
Administrator,  (ii)  to  the  State  in  which  the  alleged 
violation  occurs,  and  (iii)  to  any  alleged  violator  of 
the  standard,  limitation,  or  order(.) 

***** 

Notice  under  this  subsection  shall  be  given  in  such 
manner  as  the  Administrator  shall  prescribe  by 
regulation. 

33  U.S.C.  1365(b).   Accordingly,  a  private  citizen  may  not 

commence  an  action  until  60  days  after  giving  notice  to  the  EPA, 

the  State,  and  the  alleged  violator.3-/  The  60-day  notice 


2/   In  addition  to  the  60-day  notice  requirement,  citizen  suits 
are  subject  to  two  other  express  statutory  limitations.   First,  a 
citizen  suit  may  be  preempted  by  certain  types  of  prior 
administrative  or  judicial  enforcement  actions  by  the  EPA  or  the 

(continued. . .) 
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requirement  is  a  'mandatory,  not  optional,  condition  precedent 
for  suit.-   Hall atrom  Vi  Tillamook  County.  493  U.S.  20,  26  (1989) 
(construing  the  comparable  notice  requirement  under  the  Resource 
Conservation  and  Recovery  Act,  42  U.S.C.  6972);  National 
Environmental  Found,  v,  Mfi  Rail  Corp. .  926  F.2d  1096,  1097  (11th 

Cir.  1991). 

The  notice  requirement  reflects  congressional  desire  to 
strike  a  balance  between  encouraging  citizen  enforcement  of  the 
CWA  and  limiting  the  burden  on  judicial  and  private  resources 
created  by  disputes  which  can  be  readily  resolved.      See 
Ha  11  strom.    493  U.S.    at  29.      The  notice  requirement  has  two 
recognized  purposes.      First,   notice  helps  to  obviate  the  need  for 
citizen  suits  by  allowing  government  agencies  to  take  primary 
responsibility   for  enforcing  environmental   regulations.      Id. 
Second,    notice  affords  the  alleged  violator  "an  opportunity  to 
bring   itself   into  complete  compliance  with  the  Act"   and  thereby 
avoid  citizen  enforcement.      IjL.   (quoting  Gwaltney  of  Smithfield, 
Ltd.    v.    Chesapeake   Bav  Found..    Inc..    484   U.S.    49,    60    (1987)). 
Thus,    "far  from  being  a  mere   formality,    prior  notice  was  viewed 
by  Congress  as  crucial   in  defining  the  proper  role  of  the  citizen 


1/    (...continued) 

State.   See  33  U.S.C.  1319(g)(6);  33  U.S.C.  1365(b)(1)(B). 
Second,  Section  505(c)(3)  of  the  CWA  requires  the  citizen- 
plaintiff  to  serve  a  copy  of  the  complaint  on  the  Attorney 
General,  and  requires  45  days'  notice  to  the  Attorney  General  and 
the  EPA  before  a  consent  decree  is  entered  in  any  citizen  suit. 
33  U.S.C.  1365(c) (3)  .   Citizens  are  also  limited  to  bringing  suit 
to  address  ongoing  violations.   Gwaltney  of  Smithfield.  Ltd.  v. 
Chesapeake  Bav  Found.  Inc..  484  U.S.  49,  60  (1987). 

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358 


suit.'      Walls  v.    Waste  Resource  Corp. .    761   F.2d  311,    317    (6th 
Cir.    1985). 

In  essence,   the  role  of  the  citizen  suit  is  to  compel  a 
violator  to  bring  itself  swiftly  into  compliance  with  the  Atffc. 
Because  the  citizen  suit  provision  serves  important  CWA  goals, 
the  EPA,   the  agency  with  primary  responsibility  for  enforcing  the 
Act,   has  an  interest  in  promoting  responsible  citizen  suit 
efforts  to  bring  violators  into  prompt  compliance. 

Furthermore,  with  respect  to  the  notice  requirements, 

Section  505  provides  that  the  notice  conform  to  specific 

requirements  defined  by  the  EPA.      33  U.S.C.    1365(b).      The  EPA  has 

promulgated  regulations  on  the  citizen  suit  notice  requirements. 

40  C.F.R.    135.1-135.4.      In  particular,    the  required  contents  of 

such  notice  are  specified  at  40  C.F.R.    135.3(a): 

Violation  of  standard,   limitation  or  order.     Notice 
regarding  an  alleged  violation  of  an  effluent  standard 
or  limitation  or  of  an  order  with  respect  thereto, 
shall   include  sufficient  information  to  permit  the 
recipient  to  identify  the  specific  standard, 
limitation,   or  order  alleged  to  have  been  violated,    the 
activity  alleged  to  constitute  a  violation,   the  person 
or  persons  responsible   for  the  alleged  violation,    the 
location  of  the  alleged  violation,    the  date  or  dates  of 
such  violation,   and  the   full  name,    address,   and 
telephone  number  of  the  person  giving  notice. 

The  60-day  notice  requirement  has  direct  application  to 

the  United  States  in  two  different  ways.      First,   notice  provides 

the  EPA  with  information  necessary  to  determine  whether  to  pursue 

a  civil   enforcement  action  against  an  alleged  polluter.      Second, 

federal   facilities  are  subject  to  citizen  enforcement  suits. 


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359 


Notice  provides  those  facilities  with  an  opportunity  to  come  into 

compliance  with  the  Act  prior  to  such  suits. 

In  keeping  with  these  various  interests  in  the  notice 

requirement,  this  brief  endeavors  to  set  forth  the  general  views 

of  the  federal  government  regarding  the  proper  interpretation  and 

application  of  EPA's  regulation.  Because  the  issue  of  the 

sufficiency  of  the  60-day  notice  letter  before  this  Court  is 

primarily  a  factual  one,  we  take  no  position  on  the  resolution  of 

the  factual  disputes  on  appeal. 

A.   Notice  must  provide  sufficient  information  to 
permit  identification  of  the  specifio  standards 
and  limitations  alleged  to  have  been  violated. 

Properly  read  as  a  whole,  EPA's  regulation  requires  the 

60-day  notice  letter  to  provide  notice  of  the  specific  categories 

of  alleged  permit  violations  of  which  the  citizen-plaintiffs 

complain  during  a  discrete  time  period.   EPA's  regulation 

requires  that  the  'notice  regarding  an  alleged  violation  of  an 

effluent  standard  or  limitation*  must  provide  sufficiently 

detailed  information  to  permit  the  recipient  —  i.e. .  the  EPA, 

the  State,  and  the  alleged  violator  —  to  identify,  among  other 

items,  the  specific  standard  or  limitation  alleged  to  have  been 

violated,  the  activity  alleged  to  constitute  the  violation,  and 

the  date  or  dates  of  such  violation. 4/ 


4/   The  regulation  requires  identification  of  a  'specific 
standard  or  limitation,"  not  merely  an  allegation  that  the 
defendant  is  in  violation  of  the  more  general  term  "effluent 
standard  or  limitation*  as  defined  in  Section  505(f)  of  the  CWA, 
33  U.S.C.  1365(f).   In  this  case,  the  "effluent  standard  or 
limitation"  alleged  to  have  been  violated  is  defendant's  NPDES 
"permit  or  condition  thereof."  33  U.S.C.  1365(f)(6). 

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In  the  context  of  NPOES  permit  violations,  the  EPA 
regulation  envisions  that  citizen-plaintiffs  would  identify  in 
their  initial  notice  letter  the  violations  on  which  they  intend 
to  bring  suit.   Broad  allegations  that  a  party  is  in  violation  of 
a  certain  NPDES  permit,  without  more,  do  not  satisfy  the  detailed 
requirements  of  40  C.F.R.  135.3.   Similarly,  the  mere  statement 
that  citizen-plaintiffs  plan  to  supplement  a  list  of  pre-notice 
violations  upon  further  review  of  the  alleged  polluter's  record 
does  not  sufficiently  put  the  EPA,  the  State,  and  the  alleged 
violator  on  notice  of  all  subsequent  violations  of  effluent 
limitations  or  standards  with  respect  to  an  NPDES  permit. 

General  and  open-ended  notices,  stating  only  that  an 
NPDES  permit  has  been  violated  or  that  additional  post-notice 
violations  may  be  subsequently  alleged  by  citizen-plaintiffs,  do 
not  inform  the  alleged  polluter  of  what  it  must  do  to  bring 
itself  into  compliance.   Rather,  more  specific  notice  providing 
better  identifying  information,  such  as  the  period  of  violation 
and  the  involved  pollutants,  is  necessary  to  satisfy  the  notice 
requirements  set  forth  in  EPA's  regulation.5-/ 


5/   Of  course,  the  resolution  of  whether  a  notice  letter 
provides  information  that  is  specific  enough  to  put  the  recipient 
on  notice  of  particular  alleged  violations  is  ultimately  a 
question  of  fact  that  must  be  resolved  by  the  district  court.   In 
any  event,  we  note  that  in  many  cases,  an  NPDES  permit  will 
include  effluent  limitations  for  numerous  pollutants  with  respect 
to  numerous  different  outfalls.   We  submit  that  in  such  cases 
involving  more  *complex*  permits,  more  specificity  may  be 
required  (e.g. .  identifying  the  pollutant  and  outfall  at  which 
the  violation  occurred;  the  week,  month,  or  quarterly  time  period 
in  which  the  violation  occurred)  to  satisfy  the  requirements  of 
EPA's  regulation. 

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361 


Moreover,  with  respect  to  violations  of  effluent 
limitations  set  forth  in  an  NPDES  permit,  the  identification  by 
citizen-plaintiffs  of  the  particular  types  of  effluent 
limitations  being  violated  is  not  particularly  burdensome.   The 
CWA's  public  disclosure  requirements,  Section  308(c)  of  the  CWtf* 
33  U.S.C.  1318(c),  ensure  that  citizen-plaintiffs  have  the  right 
to  access  relevant  information  contained  in  discharge  monitoring 
reports  ('DMRs').*/  See  Natural  Rpgnnreea  Defense  Council  v. 
TP-vaco  Refining  j  Klcto.  .  2  P. 3d  493,  501  (3d  Cir.  1993).   NPDES 
permits  require  the  filing  of  DMRs,  and  most  discharge  violations 
are  readily  revealed  by  the  DMRs.   In  view  of  the  availability  of 
such  information  and  the  purposes  of  the  notice  requirement, 
where  the  alleged  violations  may  be  ascertained  from  the  DMRs  or 
other  publicly  available  reports,  EPA's  regulation  should  be 
interpreted  to  require  that  such  categories  of  pre-notice 
effluent  limitation  violations  be  mentioned  in  a  60-day  notice 
letter  prior  to  the  filing  of  a  citizen  suit. 

As  Congress  indicated,  EPA's  regulations  'should  not 
require  notice  that  places  impossible  or  unnecessary  burdens  on 
citizens  but  rather  should  be  confined  to  requiring  information 
necessary  to  give  a  clear  indication  of  the  citizens'  intent." 
See  S.  Rep.  No.  414,  92nd  Cong.,  1st  Sess.  79-80  (1971), 
reprinted  in  1972  U.S.C. C.A.N.  3668,  3745.   It  is  not  unduly 
burdensome  for  the  citizen-plaintiff  to  specifically  identify 


£/   Since  the  DMRs  are  prepared  by  the  defendant  who  is  required 
to  retain  them,  40  C.F.R.  122.41(j) (2) ,  they  are  also  accessible 
to  the  defendant. 

-  12  - 


362 


pre-notice  violations  of  the  NPDES  permit  that  are  observable 
from  the  DMRs  or  other  publicly  available  reports.  The  citizen- 
plaintiff  nust  identify  specific  categories  and  periods  of 
violations  of  the  NPDES  permit  sufficient  to  put  the  EPA,  the 
State, .and  the  alleged  violator  on  notice  Of  alleged  violation^. 
Such  notice,  which  satisfies  the  requirements  of  40  C.F.R.  135.3, 
enables  the  alleged  violator  to  determine  what  It  must  do  to 
avoid  suit  and  to  comply  fully  with  the  Act.  In  short,  failure 
to  provide  such  notice  should  result  in  dismissal  of  claims 
alleging  pre-notice  violations  that  are  identifiable  from  the 
DMRs  or  other  public  records. 

B.   While  notice  should  be  required  for  violations 
that  cannot  be  detected  from  public  records,  the 
district  court  should  facilitate  discovery  of  suoh 
violations. 

The  United  States  recognizes  that  for  a  variety  of 

reasons  there  are  certain  pre-notice  violations  that  cannot  be  so 

readily  identified  by  citizen-plaintiffs. 2/  a  district  court's 

application  of  the  EPA  regulation  to  this  category  of  violations, 

i.e. .  violations  not  identifiable  in  public  documents,  should  be 

guided  by  somewhat  different  considerations.   We  submit  that  the 

regulation,  and  the  policy  it  serves,  require  that  a  new  or 

supplemental  60-day  notice  of  such  violations,  which  are  not 


2/   For  example,  plaintiffs  in  this  case  explain  in  their  briers 
that  many  monitoring,  reporting  and  record-keeping  violations  ar* 
not  apparent  from  the  face  of  the  DMRs  and  other  publicly 
available  reports.   See  NJPIRG's  Opening  Brief  at  17,  33; 
NJPIRG's  Reply  Brief  at  21-22.   They  also  note,  however,  that  in 
some  instances,  the  DMRs  do  disclose  such  violations.   See 
NJPIRG's  Opening  Brief  at  15  n.9. 

-  13  - 


363 


continuous  or  intermittent  violations  of  the  type  already  stated 
in  a  notice,  be  given  before  civil  prosecution  of  such  claims  nay 
proceed,  provided  that  the  district  court  allows  or  facilitates  a 
broad  scope  of  discovery  in  the  initial  citizen  suit.   The 
citizen-plaintiffs  should. have  the  opportunity,  once  a  complaint 
is  filed,  to  use  discovery  techniques  to  determine  if  there  are 
other  violations  reasonably  related  to  those  in  their  notice 
letter  that  are  not  apparent  or  readily  discernible.   The 
district  court  should  not  permit  defendant  to  use  the 
citizen-plaintiffs'  notice  letter  to  circumscribe  the  scope  of 
discovery.   Rather,  the  court  should  give  effect  to  the  broad 
scope  of  Rule  26(b)  of  the  Federal  Rules  of  Civil  Procedure. S/ 
Upon  expiration  of  another  60-day  notice  period,  the  complaint 
may  then  be  amended  or  supplemented  to  address  the  newly 
discovered,  and  unrectified,  violations. 2/  By  proceeding  in  this 
manner,  any  ultimate  injunctive  relief  granted  by  the  district 
court  will  be  as  meaningful  and  comprehensive  as  possible. 


2/   See  Fed.  R.  Civ.  P.  26(b)(1)  ('Parties  may  obtain  discovery 
regarding  any  matter,  not  privileged,  which  is  relevant  to  the 
subject  matter  involved  in  the  pending  action  *  *  *•"); 
Qppenheimer  Fund.  Inc.  v.  Sanders.  437  U.S.  340,  351  (1978)  (Rule 
26(b)(1)  has  been  construed  "broadly  to  encompass  any  matter  that 
bears  on,  or  that  reasonably  could  lead  to  other  matter  that 
could  bear  on,  any  issue  that  is  or  may  be  in  the  case*)  ;  United 
States  v.  Farlev.  11  F.3d  1385,  1390  (7th  Cir.  1993)  ('The 
Federal  Rules  of  Civil  Procedure  contemplate  broad  discovery") . 

2/   Plaintiffs  may  amend  their  complaint  as  of  right  before  the 
filing  of  a  responsive  pleading.   See  Fed.  R.  Civ.  P.  15.   In 
addition,  federal  courts  freely  allow  amendment  of  complaints  to 
conform  to  the  evidence.   Id.   Moreover,  in  the  interest  of 
judicial  economy,  federal  courts  in  these  situations  should  allow 
permissive  amendments  to  the  complaint,  rather  than  encourage  the 
filing  of  multiple  civil  actions. 

-  14  - 


364 


Only  in  this  way  can  a  citizen-plaintiff  discover  and 
seek  to  remedy  violations  that  are  not  readily  ascertainable  from 
public  records.   The  alleged  violator  also  receives  fair 
treatment  under  this  approach.   The  alleged  violator  is  still 
given  its  60  days  to  rectify  violations  and  is  protected  against 
the  citizen-plaintiff's  potential  failure  to  put  the  violator  on 
timely  notice  of  new  violations  discovered  during  the  litigation. 
At  the  same  time,  the  alleged  violator  cannot  use  the  notice 
requirement  as  a  shield  to  protect  it  from  claims  that  the 
citizen-plaintiff  could  not  reasonably  be  expected  to  detect 
before  giving  its  initial  notice. 

Such  supplemental  notice  also  alerts  the  EPA  and  the 
State  of  the  newly  alleged  violations,  giving  them  the 
opportunity  to  take  an  enforcement  action  against  the  polluter. 
Unlike  allegations  regarding  effluent  limitation  violations, 
which  normally  may  trigger  a  broad  agency  review  of  a  defendant's 
permit  files,  allegations  regarding  recordkeeping  violations,  for 
instance,  may  only  be  brought  to  the  government's  attention  in  a 
60-day  notice  letter. 

Separate  notice  letters  are  not  required  for  each  and 
every  new  violation  discovered  after  the  filing  of  the  initial 
notice,  but  for  only  those  categories  of  violations  different 
from  those  already  mentioned  in  prior  notices.   See  infra,  Section 
C.   A  requirement  that  such  new  violations  be  stated  in  separate 
notice  letters  furthers  a  primary  objective  of  the  citizen  suit, 
which  is  to  bring  the  polluter  into  complete  compliance  with  the 

-  15  - 


365 


Act.   Where  notice  is  provided  of  new  violations,  the  polluter 

will  be  given  a  60-day  opportunity  to  cure  the  wrongdoing.  Upon 

expiration  of  the  60-day  period,  the  complaint  may  then  be  ■*»■ 

amended  or  supplemented  to  include  the  newly  discovered,  and 

unrectified,  violations.' 

Where  violations  are  ongoing  under  the  Gwaltney 

standard,  a  district  court  will  have  the  authority  to  grant 

injunctive  relief  and  assess  penalties  as  to  such  violations. 

Ultimately  then,  the  goal  of  this  approach  is  to  ensure  that  any 

injunction  issued  and  penalties  assessed  by  the  court  address  all 

meaningful  violations  of  the  CWA.   In  this  manner,  the  statutory 

notice  requirements  of  the  Act  will"  serve  the  goals  of  the 

citizen  suit,  i.e. .  ensuring  that  regulated  entities  are  fully 

complying  with  the  CWA  and  deterring  other  potential  violators  of 

the  Act. 

C.   Later-occurring  continuous  or  intermittent 

violations  already  mentioned  in  prior  notices  need 
not  be  listed  in  subsequent  notice  letters. 

In  our  view,  the  CWA  notice  requirement  does  not 
require  separate  notice  to  be  given  for  continuous  or 
intermittent  violations  that  have  already  been  the  subject  of 
previous  notice  letters.   Accordingly,  the  district  court  erred 
in  holding  that  a  new  60-day  notice  letter  is  required  for  all 
post-notice  violations  that  occurred  prior  to  the  filing  of  the 
complaint.   The  notice  requirement  is  designed  to  inform  the 
alleged  polluter  of  the  specific  conduct  of  which  citizen- 
plaintiffs  complain  so  that  it  has  the  opportunity  to  cure  the 

-  16  - 


366 


wrongdoing.  There  is  no  need  for  repetitive,  additional  notices 
of  continuous  or  intermittent  violations  for  which  notice  has 
previously  been  given.   In  such  cases,  the  polluter  has  already 
been  given  an  opportunity  to  rectify  the  violations. 

Similarly,  notice  affords  the  EPA  or  the  State  an 
opportunity  to  pass  upon  the  claims  of  alleged  violations  prior 
to  a  citizen-plaintiff's  suit  to  enforce  specific  permit 
limitations  or  conditions.   In  most  cases,  where  the  regulatory 
agencies  previously  have  been  informed  of  specific  violations  of 
the  Act,  they  will  have  received  sufficient  information  from 
which  to  decide  whether  or  not  to  launch  an  enforcement  action 
against  the  polluter.  Thus,  the  objectives  of  the  CWA's  notice 
requirement  are  satisfied  without  new  notices  of  continuing 
violations. 

The  CWA  permits  citizen  suits  only  in  situations  where 
there  may  be  ongoing  violations.   Cwaltney.  484  U.S.  at  60-64. 
It  is  important,  however,  that  this  Court  recognize  that  the 
CWA's  jurisdictional  requirement  that  citizen-plaintiffs  allege  a 
'state  of  either  continuous  or  intermittent  violation'  at  the 
time  when  the  complaint  is  filed,  see  id.  at  57,  is  independent 
of  the  Act's  60-day  notice  requirement.   These  are  two  separate 
jurisdictional  requirements  for  bringing  a  citizen  suit.   First, 
there  is  the  requirement  that  citizen-plaintiffs  provide  a  60-day 
notice  of  intent  to  file  suit.   See  33  U.S.C.  1365(b).   Second, 
there  is  the  requirement  that  the  complaint  contain  good-faith 

-  17  - 


367 


allegations  of  ongoing  violation  by  the  alleged  polluter.   See  33 
U.S.C.  1365(a);  Gwaltnev.  484  U.S.  at  64-67. 

In  the  present  case,  the  district  court  has  apparej^ly 
confused  the  issues  of  what  allegations  of  continuing  violations 
must  be  nade  to  support  jurisdiction  under  cvaltnev  and  what 
constitutes  adequate  notice  of  such  violations  under  the  Act. 
See  March  1993  Opinion  at  21-24.  The  determinative  question 
regarding  the  adequacy  of  a  60-day  notice  letter  is  not  whether 
continuing  violations  occurred  before  or  after  the  filing  of  the 
complaint,  but  rather  whether  specific  notice  has  been  given 
regarding  such  violations.   There  is  no  valid  reason  to  apply  the 
notice  obligation  differently  based  -on  when  the  complaint  was 
filed.   Therefore,  we  believe  that  the  district  court  erred  in 
holding  that  a  new  60-day  notice  letter  is  required  for  all, 
pre-coroplaint  violations,  regardless  of  whether  they  are 
continuous  or  intermittent  violations  of  those  already  listed  in 
prior  notices.  See  March  1993  Opinion  at  21-24. 

COMCL08XOM 

EPA's  notice  regulation  requires  that,  where  the 
alleged  categories  of  violations  of  defendant's  NPDES  permit  may 
be  identified  from  the  DKRs  or  other  public  records,  the  citizen- 
plaintiff  Bust  identify  those  violations  in  a  60-day  notice 
letter  prior  to  the  filing  of  a  citizen  suit.   Once  a  citizen 
enforcement  action  has  been  filed,  we  encourage  the  district 
courts  to  permit  broad  discovery  to  allow  the  citizen-plaintiff 
the  opportunity  to  determine  whether  there  are  other  violations 

-  18  - 


368 


that  are  not  apparent  or  ascertainable  from  the  face  of  the  DMRs 
or  other  publicly  available  reports.  Where  the  citizen-plaintiff 
has  identified  new  types  of  violations  through  the  discovery 
process,  it  must  file  a  new  or  supplemental  60-day  notice  letter 
that  includes  those  newly  discovered  violations.   Upon  expiration 
of  that  60-day  notice  period,  the  complaint  may  then  be  amended 
or  supplemented  to  address  the  newly  discovered,  and  unrectified, 
violations.  As  a  result,  the  district  court  will  have 
jurisdiction  over  all  violations  for  which  it  may  hold  defendant 
liable.   We  believe  that  this  reasonable  approach  to  the 
statutory  notice  requirements  of  the  Act  will  further  a  primary 
goal  of  the  citizen  suit,  i.e. .  ensuring  that  regulated  entities 
come  into  full  compliance  with  the  CWA. 

Accordingly,  the  district  court  should  make  the 
following  inquiries  regarding  proper  notice  of  NPDES  permit 
violations  under  EPA's  regulation.   First,  the  court  should 
determine  what  violations  could  have  been  ascertained  from  public 
records  prior  to  notice,  and  dismiss  those  violations  not  stated 
in  the  60-day  notice  letter.   Second,  the  court  should  determine 
what  new  types  of  violations  are  not  mentioned  in  the  notice 
letter,  and  require  that  a  new  60-day  notice  letter  be  issued 
regarding  those  violations.   Finally,  the  court  should  not 
require  separate  notice  to  be  given  for  post-notice  continuous  or 
intermittent  violations  that  have  already  been  mentioned  in 
previous  notice  letters. 

-  19  - 


JULY  1994 
90-1-24-177-254 


369 


Respectfully  submitted, 

LOIS  J.  SCHIFFER 

Retina  Assistant  Attorney  General 

ELLEN  J.  DURKEE 
EVELYN  S.  YING 

Attorneys.  Department  of  Justice 
Environment  I   Natural  Resources 
Division 

Washington.  D.C. 2Q5?Q 

f202)  514-2754 


-  20  - 


370 


CERTIFICATE  OF  8BRVICB 

I  certify  that  two  copies  of  the  foregoing  Brief  for 

the  United  States  as  Amicus  Curiae,  have  been  served  upon  * 

counsel,  properly  addressed  this  7th  day  of  July  1994,  to: 

Bruce  J.  Terris  -        (By  Hand  Delivery) 

Carolyn  Smith  Pravlik 
Terris,  Pravlik  &  Wpigner 
1121  12th  Street,  N.W. 
Washington,  D.C.   20005 


Joel  Schneider 

Manta  and  Helge 

Suite  600 

1040  North  Kings  Highway 

Cherry  Hill,  New  Jersey  08034 

Marianne  Dugan 

Michael  Axline 

Western  Environmental  Law  Center 

44  West  Broadway,  Suite  200 

Eugene,  Oregon  97402 

David  A.  Nicholas 

Charles  C.  Caldart 

National  Environmental  Law  Center 

29  Temple  Place 

Boston,  Massachusetts   02111 

Mark  Van  Putten 

National  Wildlife  Federation 

Great  Lakes  Natural  Resource  Center 

506  E.  Liberty,  Second  Floor 

Ann  Arbor,  Michigan  48104-2210 

Charles  M.  Tebbutt 
Allen,  Lippes  &  Shonn 
1260  Delaware  Avenue 
Buffalo,  New  York   14209-2498 

Daniel  Cooper 

San  Francisco  Baykeeper 

468  Duboce 

San  Francisco,  CA   94117 


(By  Fax  and  Overnight 
Delivery) 


(By  Overnight  Delivery) 


(By  Overnight  Delivery) 


(By  United  States  Mail) 


(By  United  States  Mail) 


(By  United  States  Mail) 


fLYN   S. 
Attorney, lDepartm4At  of^Justice 
Washington,    D.C.      20530 
(202)     514-2754 


NOMINATIONS  OF  LAURIE  O.  ROBINSON,  TO 
BE  ASSISTANT  ATTORNEY  GENERAL,  OF- 
FICE OF  JUSTICE  PROGRAMS;  NANCY  E. 
GIST,  TO  BE  DIRECTOR,  BUREAU  OF  JUS- 
TICE ASSISTANCE;  JAN  M.  CHAIKEN,  TO  BE 
DIRECTOR,  BUREAU  OF  JUSTICE  STATIS- 
TICS; AND  JEREMY  TRAVIS,  TO  BE  DIREC- 
TOR, NATIONAL  INSTITUTE  OF  JUSTICE 


THURSDAY,  AUGUST  18,  1994 

U.S.  Senate, 
Committee  on  the  Judiciary, 

Washington,  DC. 

The  committee  met,  pursuant  to  notice,  at  10:04  a.m.,  in  room 
SD-628,  Dirksen  Senate  Office  Building,  Hon.  Carol  Moseley- 
Braun  presiding. 

Also  present:  Senators  Simpson  and  Brown. 

OPENING  STATEMENT  OF  SENATOR  MOSELEY-BRAUN 

Senator  Moseley-Braun.  The  hearing  will  come  to  order.  This 
morning  the  Judiciary  Committee  will  conduct  a  hearing  regarding 
the  following  nominees:  Laurie  Robinson  to  be  the  Assistant  Attor- 
ney General  for  the  Office  of  Justice  Programs;  Nancy  Gist  to  be 
Director  of  the  Bureau  of  Justice  Assistance;  Jan  Chaiken  to  be  the 
Director  of  the  Bureau  of  Justice  Statistics;  Jeremy  Travis,  to  be 
Director  of  the  National  Institute  of  Justice. 

As  is  customary,  we  will  hear  first  from  the  Senators  and  Rep- 
resentatives who  wish  to  introduce  nominees  to  the  committee,  but 
before  we  turn  to  them  let  me  state  for  the  record  that  each  nomi- 
nee has  completed  a  detailed  questionnaire  on  his  or  her  Qualifica- 
tions, experiences,  finances,  and  philosophy.  Portions  of  the  ques- 
tionnaire available  to  the  public  will  be  printed  in  the  record  of  this 
hearing. 

We  will  also  keep  the  record  open  for  a  limited  time  in  case  mem- 
bers of  the  committee  would  like  to  submit  written  questions,  and, 
of  course,  we  will  place  in  the  record  the  full  introductory  state- 
ment of  home  State  senators.  As  I  am  the  only  member  of  the  com- 
mittee here  at  this  time,  we  will  dispense  with  opening  statements. 
But  I  just  want  to  say  for  the  nominees  and  their  families  and  visi- 
tors who  are  here  today,  these  hearings  are  held  pursuant  to  arti- 
cle II,  section  2  of  our  Constitution  that  calls  on  the  Senate  to  ad- 
vise and  consent  with  regard  to  certain  positions.  I  try  to  move 

(371) 


372 

them  along.  Most  of  the  nominees  have  waited  a  long  time  for  this 
day.  You  have  been  patient.  You  have  dealt  with  the  vagaries  of 
the  modern  vetting  process  which  is  our  present-day  equivalent  of 
trial  by  ordeal.  [Laughter.] 

Having  done  that,  at  this  point,  you  have  been  cleared  and  ap- 
proved already  by  so  many  different  agencies  and  offices.  This  com- 
mittee, of  course,  will  fulfill  and  is  fulfilling  its  constitutional  re- 
sponsibilities, but  I  want  to  say  to  all  of  you  congratulations  on  get- 
ting this  far,  and  I  hope  that  this  hearing  is  relatively  painless  for 
all  of  you.  We  will  bifurcate  today's  hearing. 

First,  we  will  have  the  nominees  and  any  representatives  who 
are  here  to  introduce  them  and  then  thereafter  we  will  proceed 
with  questions.  The  distinguished  representative  from  Washington, 
DC,  Representative  Eleanor  Norton  is  here  to  introduce  Ms.  Robin- 
son, and  so  Representative,  if  you  would  like  to  start  with  your  in- 
troduction. 

STATEMENT  OF  HON.  ELEANOR  HOLMES  NORTON,  A  REP- 
RESENTATIVE IN  CONGRESS  FROM  THE  DISTRICT  OF  CO- 
LUMBIA 

Delegate  Norton.  Thank  you  very  much,  Madam  Chairman.  It 
is  a  very  special  pleasure  to  appear  before  you  this  morning  and 
to  introduce  Laurie  Robinson,  the  President's  nominee  to  be  Assist- 
ant Attorney  General  for  the  Office  of  Justice  Programs.  If  I  may, 
Madam  Chairman,  I  would  like  to  introduce  as  well  her  family  and 
ask  to  stand  Sheldon  Krantz,  an  attorney  here  in  Washington,  and 
10-year-old  Teddy. 

Teddy.  Eleven. 

Senator  Moseley-Braun.  Eleven.  We  will  correct  the  record.  It 
is  11.  [Laughter.] 

Delegate  Norton.  I  stand  corrected.  Madam  Chairman,  it  is  a 
mark  of  the  outstanding  qualifications  of  this  nominee  that  she 
came  to  the  Justice  Department  as  an  Associate  Attorney  General 
in  1993,  and  is  now  being  nominated  by  President  Clinton  to  head 
an  important  division  of  the  department.  Ms.  Robinson  is  a  Phi 
Beta  Kappa,  magna  cum  laude  graduate  of  Pembroke  College  and 
Brown  University.  For  7  years,  she  was  director  of  the  American 
Bar  Association's  Criminal  Justice  Section  and  for  an  additional  7 
years  of  its  D.C.  Professional  Services  Division. 

She  has  published  widely  in  legal  journals  and  Ms.  Robinson,  as 
well,  has  given  generously  in  public  service  positions  of  her  time 
on  boards,  among  them  as  chair  of  the  National  Forum  on  Criminal 
Justice  and  as  a  member  of  the  board  of  the  Victims  Assistance 
Legal  Organization.  It  is  a  special  pleasure  for  me,  Madam  Chair- 
man, a  native  Washingtonian,  to  introduce  this  native  daughter 
and  to  tell  you  how  proud  Washingtonians  are  of  her  nomination. 

Senator  Moseley-Braun.  Thank  you  very  much,  Representative. 
Ms.  Robinson,  we  will  start  with  you  momentarily.  I  wanted  to,  if 
it  is  all  right,  go  through  the  introductions.  We  have  such  a  busy 
schedule  with  health  care  and  the  like  going  on,  and  I  see  Senator 
D'Amato  is  here  to  introduce  another  nominee.  So  we  will  come 
back  to  your  opening  statement  and  swear  you  in  momentarily. 

Ms.  Robinson.  Thank  you. 


373 

Senator  Moseley-Braun.  Senator  D'Amato,  the  Senator  from 
New  York. 

STATEMENT  OF  HON.  ALFONSE  D'AMATO,  A  U.S.  SENATOR 
FROM  THE  STATE  OF  NEW  YORK 

Senator  D'Amato.  Well,  Madam  Chairman,  it  is  good  to  be  with 
you  again  today.  We  have  spent  a  lot  of  time  together  the  past  sev- 
eral weeks,  the  evenings,  starting  early  in  the  morning,  going  into 
the  next  morning.  I  kind  of  miss  that.  [Laughter.] 

Senator  Moseley-Braun.  Senator  D'Amato,  your  presence,  your 
company  was  fine,  but  I  did  not  miss  what  we  went  through  at  all. 

Senator  D'Amato.  Madam  Chairman,  I  am  deeply  honored  and 
pleased  to  be  here  today  to  present  to  you  and  to  this  committee 
Mr.  Jeremy  Travis,  whom  the  President  has  nominated  to  be  Direc- 
tor of  the  National  Institute  of  Justice.  I  would  also  like  to  recog- 
nize Mr.  Travis'  wife,  Susan  Herman,  who  is  a  very,  very  distin- 
guished person  in  her  own  right.  She  serves  as  the  director  of  the 
Domestic  Violence  Division  at  the  Victims  Service  Agency  in  New 
York  City,  and  I  know  that  that  is  something  that  is  an  area  of 
concern,  of  special  concern,  to  yourself,  and  you  have  authored  leg- 
islation to  address  the  problem  of  domestic  violence.  This  is  an  un- 
usual family,  a  family  tremendously  dedicated  to  law  enforcement 
and  to  improving  the  quality  of  life  for  people. 

In  1974,  Mr.  Travis  served  as  the  first  director  of  the  Victims 
Witness  Assistance  Project,  a  very  innovative  program  designed  to 
provide  assistance  to  crime  victims.  In  1977,  he  was  named  the 
first  director  of  the  New  York  City  Criminal  Justice  Agency,  an 
agency  which  has  been  a  leader  in  bail  reform  and  the  introduction 
of  new  technology  into  the  criminal  justice  system.  After  graduat- 
ing cum  laude  from  New  York  University  Law  School  in  1982,  Jer- 
emy Travis  began  what  has  become  a  very  distinguished  career  in 
law  and  public  service. 

He  clerked  for  Justice  Ruth  Bader  Ginsburg,  who  at  the  time 
was  sitting  on  the  Court  of  Appeals  for  the  District  of  Columbia. 
Mr.  Travis  has  also  served  3  years  as  special  adviser  to  Mayor  Ed 
Koch,  and  in  1990,  he  served  as  the  chief  counsel  for  the  House  of 
Representatives  Subcommittee  on  Criminal  Justice.  As  you  can  see, 
Jeremy  Travis  has  a  wide  and  diverse  and  very  deep  area  of  exper- 
tise in  the  criminal  justice  system.  Wherever  he  has  gone,  he  has 
been  outstanding.  He  also  spent  a  significant  portion  of  his  career 
working  in  the  community. 

He  worked  as  an  associate  with  the  American  Civil  Liberties 
Union  in  New  York,  the  American  Civil  Liberties  Union  Women's 
Rights  Project,  and  the  NAACP.  Jeremy  Travis  returned  to  New 
York  in  1990  at  the  request  of  Lee  Brown  to  take  the  position  of 
Deputy  Commissioner  for  Legal  Matters  at  the  city  of  New  York 
police  department,  and  in  this  position  Mr.  Travis  has  served  and 
continues  to  serve  with  particular  distinction  developing  new  and 
creative  approaches  to  some  of  the  most  difficult  problems  facing 
the  criminal  justice  system. 

Mr.  Travis'  ideas  have  saved  police  resources,  and  have  helped 
keep  dangerous  criminals  off  the  street.  Jeremy  Travis  comes  be- 
fore this  committee  with  a  unique  and  diverse  background.  His  cre- 
dentials are  many,  and  he  is  certainly  no  stranger  to  hard  work. 


374 

I  can  think  of  no  other  nominee  more  worthy  of  this  very,  very  im- 
portant position  than  Jeremy  Travis.  I  commend  the  President  for 
recommending  Mr.  Travis,  and  I  urge  this  committee's  swift  ap- 
proval. I  thank  the  chair. 

Senator  Moseley-Braun.  Thank  you  very  much,  Senator 
D'Amato.  And  I  know  how  busy  you  are,  and  I  thank  you  for  your 
introduction  of  this  nominee,  and  so  I  want  to  again  thank  you  for 
taking  time  out  of  your  busy  schedule  to  come  by  and  to  make  this 
introduction. 

Senator  D'Amato.  Thank  you,  Madam  Chairman. 

Senator  Moseley-Braun.  You  are  very  welcome.  Mr.  Travis,  I 
would  also  indicate  that  Senator  Moynihan  would  have  liked  to 
have  been  here,  but  as  you  know,  he  is  on  the  floor  hostage  to  the 
health  care  bill,  and  so  he  could  not  join  us  this  morning. 

We  have  just  been  joined  by  Senator  Simpson,  and  Senator, 
would  you  like  to  make  an  opening  statement  or 

Senator  Simpson.  Just  an  apology,  Madam  Chairwoman.  I  went 
to  the  other  Judiciary  Committee  room,  and  it  looked  strange  in 
there  and  I  left.  [Laughter.] 

So  here  I  am  ready  to  go  to  work.  It  is  my  shift,  and  I  enjoy 
working  with  you,  and  it  is  a  great  pleasure  to  have  you  on  the  Ju- 
diciary Committee,  and  you  are  a  wonderful  contributing  member, 
and  I  certainly  have  come  to  enjoy  you  and  your  work. 

Senator  Moseley-Braun.  Well,  thank  you  very  much,  Senator 
Simpson.  Senator  Simpson  does  the  best  job  of  talking  about  senior 
issues  than  anyone  I  know  in  the  U.S.  Senate,  and  he  is  a  joy  to 
work  with  as  well. 

Senator  Simpson.  The  AARP  is  outside  waiting  for  me  now. 
[Laughter.] 

Senator  Moseley-Braun.  All  right.  Senator  Kennedy  had  called 
and  indicated  that  he  wanted  to  introduce  Nancy  Gist  and  Jan 
Chaiken.  He  cannot;  again,  this  is  because  of  health  care.  He  is 
tied  to  his  desk  at  the  floor  literally  to  work  that  bill,  and  so  will 
not  be  here  to  introduce  those  nominees.  I  should  say  probably  for 
the  record  in  spite  of  the  fact  that  I  try  to  make  it  a  point  person- 
ally not  to  comment  on  nominees  that  come  before  the  Judiciary 
Committee  before  the  hearing,  I  have  to  confess — I  do  not  know  if 
that  is  the  right  word — to  a  20-year  acquaintance  with  Nancy  Gist. 
I  am  personally  very  proud  that  the  President  has  nominated  her. 
I  know  Nancy's  background,  and  you  will  hear  that  momentarily, 
but  to  say  that  I  am  just  delighted,  and  I  cannot  imagine  anyone 
better  for  the  position  than  Nancy  Gist.  I  want  to  thank  the  Presi- 
dent for  what  he  has  done  and  congratulate  and  commend  Ms. 
Reno  for  her  nomination  of  Nancy  Gist  as  well.  So  Ted  Kennedy 
was  not  here,  Nancy,  but [Laughter.] 

All  right.  Let  us  start  with  Laurie  Robinson  from  Washington, 
DC,  OK.  Would  you  remain  standing  to  take  the  oath?  Do  you 
swear  the  testimony  you  will  give  before  this  committee  shall  be 
the  truth,  the  whole  truth,  and  nothing  but  the  truth? 

Ms.  Robinson.  I  do. 

Senator  Moseley-Braun.  Ms.  Robinson,  I  understand  you  have 
an  opening  statement  for  the  committee. 


375 

TESTIMONY  OF  LAURIE  O.  ROBINSON,  WASHINGTON,  DC,  TO 
BE  ASSISTANT  ATTORNEY  GENERAL,  OFFICE  OF  JUSTICE 
PROGRAMS 

Ms.  Robinson.  Thank  you.  Madam  Chairwoman,  Senator  Simp- 
son, it  is  hard  to  think  of  an  issue  that  the  American  public  cares 
more  strongly  about  right  now  than  crime.  I  have  had  the  oppor- 
tunity over  the  past  20  years  to  work  with  people  from  all  parts 
of  the  criminal  justice  system,  prosecutors,  corrections,  judges,  law 
enforcement,  juvenile  justice,  and  community  and  victim  groups.  I 
know  they  are  often  impatient  and  cynical  about  what  Washington 
can  do  about  this  issue.  I  think  we  all  understand  their  frustration. 
But  despite  these  terrible  problems,  I  am  optimistic  about  our  abil- 
ity to  help  communities  do  something  about  this.  I  am  optimistic 
not  only  because  there  are  sound  programs  out  there  in  areas  like 
policing  and  corrections,  but  also  because  as  I  have  traveled  around 
the  country,  I  have  had  a  chance  to  see  the  energy  and  enthusiasm 
in  communities,  neighborhood  groups  organizing  often  without  any 
government  money  to  patrol  their  neighborhoods,  run  after-school 
programs,  work  with  police  to  close  down  drug  markets. 

Despite  the  cynicism  that  nothing  works,  there  are  good  and  suc- 
cessful programs  out  there  like  the  one-room  program  I  saw  in  a 
Los  Angeles  public  housing  facility  which  is  helping  kids  to  stay  in 
school  and  transition  into  jobs  after  graduation,  or  the  community 
policing  program  in  Chicago  that  has  so  successfully  gotten  under- 
way or  tne  boot  camp  program  in  New  York  State  which  is  really 
helping  offenders  reintegrate  back  into  the  community  with  a  very 
intensive  after-care  program. 

I  think  the  Federal  Government  has  a  critical  role  to  play  in 
helping  here.  First,  it  seems  to  me  we  should  be  ensuring  that  we 
get  information  out  about  good  programs  to  communities  that  need 
ideas  on  where  to  start,  and  I  do  not  think  the  Federal  Government 
has  done  a  good  enough  job  of  that  in  the  past.  We  have  a  new 
interdepartmental  effort  at  OJP,  an  Internet-based  clearinghouse 
called  PAVnet  that  is  taking  some  important  steps  in  that  direc- 
tion. 

Second,  I  think  we  should  be  ensuring  we  get  money  out  to  sup- 
port good  programs,  and  we  do  know  from  our  research  that  there 
are  effective  approaches  out  there  to  gangs,  on  policing,  on  law  en- 
forcement technology,  on  prison  programs.  So  we  need  to  ensure 
that  we  are  spending  Federal  money  in  the  wisest  possible  way. 

Third,  we  need  to  ensure  that  we  make  information  readily  ac- 
cessible to  State  and  local  officials  about  how  to  get  Federal  money, 
and  as  one  step  in  that  direction,  at  OJP  we  have  set  up  an  800 
number  to  provide  information  and  kind  of  one-stop  shopping  about 
Federal  grants.  I  also  know  from  the  years  I  worked  with  OJP  and 
LEAA  from  the  outside  that  this  agency  has  had  problems,  and 
that  too  often  in  the  past  it  has  been  plagued  by  in-fighting  among 
the  bureaus.  I  want  to  tell  you  briefly  about  some  steps  that  the 
Attorney  General  and  I  in  my  acting  capacity  have  taken  in  recent 
months  along  with  the  help  of  some  very  dedicated  OJP  employees. 

We  have  set  up  coordinating  committees  of  program  staff  to  ad- 
dress common  issues  which  cut  across  the  bureaus,  issues  like  fam- 
ily violence  and  criminal  justice  information  systems.  We  have  co- 
ordinated our  1994  program  plans  for  spending  to  stress  common 


376 

themes  like  violence  reduction  and  youth  crime.  We  have  encour- 
aged an  unprecedented  number  of  joint  efforts  among  the  bureaus 
and  also  with  outside  agencies  like  the  State  Justice  Institute  and 
the  Department  of  Defense. 

We  have  been  working  aggressively  with  other  domestic  depart- 
ments to  share  information  and  build  common  programs.  Earlier 
this  week,  we  held  an  unprecedented  conference  on  youth  crime 
that  was  cosponsored  by  seven  Federal  departments. 

So,  in  summary,  I  am  optimistic  about  our  ability  to  help  State 
and  local  governments  really  make  progress  in  this  area.  I  think 
we  have  a  challenge  and  a  tremendous  opportunity,  and  I  am  very 
honored  that  the  President  has  nominated  me  for  this  position. 
Thank  you. 

Senator  Moseley-Braun.  Thank  you  very  much,  Ms.  Robinson. 
Senator  Simpson. 

QUESTIONING  BY  SENATOR  SIMPSON 

Senator  Simpson.  Thank  you,  Madam  Chairwoman.  I  have  read 
of  your  record  and  your  writings  and  your  work  with  the  ABA.  We 
have  had  some  difficulty  with  them  in  the  past,  too,  Madam  Chair- 
woman, with  regard  to  their  ratings  system.  [Laughter.] 

I  see  the  witness  is  smiling,  but  we  did  just  approve  unanimously 
Judge  Williams. 

Senator  Moseley-Braun.  Yes. 

Senator  Simpson.  And  he  was  rated  as  unqualified. 

Senator  Moseley-Braun.  Right. 

Senator  Simpson.  During  my  16  years  here,  it  has  been  really  re- 
markable to  see  that  they  meet  in  confidence  and  then  pour  out 
their  recommendations  without  imparting  any  knowledge  to  us  as 
to  how  they  arrived  at  their  recommendations.  That  is  not  Laurie 
O.  Robinson's  job,  but  I  just  wanted  to  fling  that  in. 

Senator  Moseley-Braun.  Well,  I  am  glad  you  did.  I  am  glad  you 
did,  Senator  Simpson.  We  had  great  discussion  in  this  committee 
regarding  the  bar  association  procedures  and  the  need  for  reform 
there,  and  I  hope,  I  am  sure  the  message  frankly  has  gotten  out, 
but  I  think  the  more  that  we  can  discuss  that  issue,  the  better  and 
the  faster  those  reforms  will  take  place. 

Senator  Simpson.  I  will  look  forward  to  working  with  you  on 
that.  I  know  you  share  my  view.  Crime  is  the  real  and  growing 
problem.  I  was  on  the  conference  committee  with  the  crime  bill.  I 
do  hope  we  can  get  a  crime  bill.  I  will  work  toward  that.  There  is 
going  to  have  to  be  some  give  and  take  of  both  sides.  But  crime  in 
the  rural  areas  is  growing,  and  I  am  not  sure  that  the  Federal  Gov- 
ernment under  any  recent  administration  has  given  sufficient  at- 
tention to  rural  crime. 

What  is  the  Office  of  Justice  Programs  doing  about  this  impor- 
tant, and  some  would  say  neglected,  aspect  of  the  crime  problem? 

Ms.  Robinson.  Senator,  I  would  agree  with  you  that  there  has 
not  been  sufficient  attention  to  this  area  in  the  past.  I  know  our 
Bureau  of  Justice  Statistics  shows  there  has  been  a  steady  increase 
in  rural  crime  over  the  last  decade.  I  know  from  your  State  and 
others,  we  do  know  there  is  a  growing  problem.  I  have  been  pleased 
to  see  that  OJP  has  begun  focusing  on  this  issue.  For  example, 
there  is  a  community  policing  initiative  working  in  rural  areas  and 


377 

projects  that  are  underway  in  four  States — Maine,  Idaho,  Virginia, 
and  Florida — which  is  really  launching  some  important  work  in 
how  do  we  address  problems  in  the  rural  jurisdictions. 

We  have  a  project  on  community  crime  prevention  looking  and 
focusing  on  rural  areas,  and  three  or  four  projects  will  be  awarded 
very  shortly  in  that  area.  Under  the  police  hiring  supplement,  the 
$150  million  program  this  past  year,  as  I  think  you  know,  half  of 
the  money  went  to  jurisdictions  under  150,000  and  many  of  those 
were  below  50,000.  So  there  has  been  a  focus,  but  I  agree  with  you 
that  we  can  and  should  do  more. 

Senator  Simpson.  Will  you  be  respecting  the  independence  re- 
quired of  the  NIJ  and  B JS  when  you  review  their  reports  and  their 
studies? 

Ms.  Robinson.  Yes,  Senator,  during  my  time  with  the  ABA  when 
I  worked  with  OJP,  I  worked  very  extensively  in  particular  with 
NIJ  and  feel  very  strongly  about  the  need  for  independence  of  re- 
search and  statistics  and  would  intend  if  confirmed  to  very  much 
respect  that  independence. 

Senator  Simpson.  If  they  came  up  with  a  report  that  is  critical 
of  the  administration  or  their  law  enforcement  activities,  what 
would  your  response  be?  Would  you  allow  that  report  to  be  pub- 
lished? 

Ms.  Robinson.  Facts  are  facts,  and  statistics  if  properly  done  are 
real,  and  I  think  we  need  to  address  that  and  be  open  about  infor- 
mation. I  think  what  we  do  not  want  is  a  screening  process  that 
looks  for  political  angles  on  things,  and  I  would  not  support  that. 

Senator  Simpson.  Well,  I  have  seen  that  in  several  administra- 
tions, and  when  it  is  uncovered  it  is  always  rather  certainly  ugly 
and  inappropriate,  and  it  has  happened  in  the  1980's  and  on  into 
the  present  time,  but  I  just  hope  you  will  be  part  of  letting  it  come 
to  the  surface  if  it  is  there.  Will  you  do  that? 

Ms.  Robinson.  Yes,  Senator.  I  view  myself  as  a  criminal  justice 
professional,  and  I  have  worked  in  this  field  for  over  20  years,  and 
feel  strongly  about  the  integrity  of  research  and  statistics. 

Senator  Simpson.  Thank  you,  Madam  Chairwoman. 

QUESTIONING  BY  SENATOR  MOSELEY-BRAUN 

Senator  Moseley-Braun.  Thank  you  very  much,  Senator  Simp- 
son. Ms.  Robinson,  the  Office  of  Justice  Programs  is  the  primary 
Federal  agency  designated  to  help  State  and  local  governments  ad- 
dress crime  and  violence.  The  OJP  and  its  bureaus  identify  emerg- 
ing criminal  justice  issues,  develop  new  ideas  and  test  promising 
approaches  to  address  these  issues,  evaluate  results  and  dissemi- 
nate these  findings  and  other  information  to  the  country.  If  con- 
firmed, what  are  your  major  goals  for  the  OJP? 

Ms.  Robinson.  Senator,  one  of  the  things,  as  I  mentioned  before, 
that  I  very  much  think  we  need  to  and  should  be  doing  is  to  ensure 
that  we  are  getting  the  word  out  about  sound  programs  and  prom- 
ising programs  that  are  working  in  communities  around  the  coun- 
try, and  I  do  not  think  the  Federal  Government  and  OJP  have  done 
a  good  enough  job  about  that  in  the  past. 

When  an  issue  of  this  kind  is  of  such  importance  to  communities 
and  people  throughout  this  country,  we  need  to  be  telling  people  in 
Dayton  what  is  working  in  Minneapolis  or  in  Syracuse,  what  is 


378 

working  in  Pensacola,  and  not  have  them  rely  on  a  give  and  take 
where  they  may  have  to  go  through  a  period  of  time  of  experimen- 
tation when  there  is  information  we  can  get  out.  So  I  see  that  as 
a  very,  very  critical  goal.  A  second  goal  would  be  to  ensure  that  we 
were  working  on  a  coordinated  basis  with  other  Federal  depart- 
ments that  have  common  themes  and  missions.  Again  I  do  not 
think  that  has  been  done  well  enough  in  the  past,  and  it  is  hard 
work. 

But  if  we  are  expecting  people  at  the  local  level  to  be  coordinat- 
ing between  social  services,  housing,  education,  law  enforcement, 
and  the  like,  it  seems  to  me  we  have  got  to  get  our  act  together 
at  the  Federal  level  as  well.  So  I  see  that  as  a  very  high  priority. 

Senator  Moseley-Braun.  Thank  you,  and  I  am  delighted  to  hear 
that,  because  the  communication  of  information  and  the  coordina- 
tion of  activities  here  at  the  Federal  level  is  so  important  in  shap- 
ing the  climate  of  opinion,  shaping  the  debate  regarding  something 
that  touches  people  so  closely  where  they  live. 

I  have  a  particular  concern  with  regard  to  juvenile  justice,  and 
the  Office  of  Juvenile  Justice  and  Delinquency  Prevention  that 
comes  under  this  agency,  this  office.  One  of  the  issues  that  has 
been  particularly  surprising  to  me  was  the  patchwork  and  the 
dearth  of  information  or  structure  for  education  programs  for  incar- 
cerated juveniles.  Some  States  do  a  decent  job  in  terms  of  educat- 
ing incarcerated  juveniles.  Other  States  allow  them  to  do  nothing 
more  than  pump  iron  all  day  long  and  watch  TV,  and  do  not  do  . 
very  much  in  terms  of  taking  advantage  of  the  opportunity  to  pro- 
vide educational  services  to  these  young  people. 

So  my  question  to  you  is,  would  you  see  it  within  the  purview 
of  the  goals  that  you  have  described  to  focus  in  on  and  to  collect 
information,  and  provide  that  information  to  us,  regarding  the  sta- 
tus of  juvenile  justice  and  particularly  juvenile  education  programs 
throughout  the  country? 

Ms.  Robinson.  Clearly  that  is  a  very  important  issue  and  one  on 
which  we  should  be  providing  information.  We  should  also  be  work- 
ing with  the  Department  of  Education  on  that  because  I  know  their 
work  on  correctional  literacy  at  the  adult  level  has  been  very  good, 
and  I  am  less  familiar  with  their  work  in  the  juvenile  area,  but  it 
is  something  we  need  to  explore  if  we  are  not  already. 

The  Juvenile  Justice  Office  through  a  comprehensive  strategy  is 
looking  at  a  variety  of  issues  in  areas  for  how  to  deal  both  with 
the  chronic  serious  and  violent  offender  and  also  with  younger  of- 
fenders who  have  not  gotten  yet  into  serious  crime  where  we  need 
to  be  addressing  how  we  get  them  on  the  right  track. 

Senator  Moseley-Braun.  The  whole  area  of  juvenile  justice  is 
one  that  is  in  a  state  of  change  at  the  present  time,  driven  in  part 
by  the  explosion  of  juvenile  violent  criminal  activity  on  the  one 
hand,  and  on  the  overcrowding  and  the  particular  circumstances 
faced  by  juvenile  justice  courts  and  social  service  mechanisms 
throughout  the  Nation.  The  courts  have  been  overwhelmed  with  ev- 
erything from  status  offenders  to  children  who  are  abandoned  and 
the  like,  and  have  found  it  very  difficult  to  address  specifically  the 
problem  of  violent  juvenile  criminal  offenders.  There  has  been  some 
discussion  of  taking  a  look,  a  wholesale  look,  at  the  state  of  juve- 


379 

nile  justice  in  the  country,  and  obviously  having  the  information 
and  the  assistance  from  your  office  would  be  critical  to  doing  that. 

I  would  just  ask  for  your  assistance  and  your  help  with  regard 
to  taking  a  look  at  whether  or  not  we  are  in  need  of  reforms  in  this 
area.  The  last  time  you  had  major  juvenile  justice  reforms  was  ap- 
proximately a  hundred  years  ago.  So  I  think  it  is  an  area  that  is 
ripe  for  reform  and  would  very  much  encourage  and  ask  for  your 
help  and  active  participation  in  that  area. 

Ms.  Robinson.  Well,  we  have  this  as  an  extremely  high  priority. 
I  think  you  know  the  Attorney  General  views  these  issues  as  very, 
very  important  and  critical  on  her  agenda  as  well.  The  Juvenile 
Justice  Office  budget  has  been  increased  for  the  current  and  the 
coming  year,  as  I  understand  the  recent  appropriations  actions, 
and  it  is  an  area  of  very,  very  high  importance  for  OJP. 

Senator  Moseley-Braun.  I  would  ask  also  with  regard  to  the 
iSSUe — again,  these  are  the  kind  of  the  criminal  justice  issues  that 
have  been  on  the  margins  up  until  now  and  are  no  longer  or  should 
not  be  on  the  margins,  and  that  is  not  only  juvenile  justice,  on  the 
one  hand,  but  the  issues  pertaining  to  women  in  prisons 

Ms.  Robinson.  Yes. 

Senator  Moseley-Braun  [continuing].  Is  another  area  that  has 
been  neglected  and  about  which  we  have  precious  little  good  infor- 
mation. 

Ms.  Robinson.  Yes. 

Senator  Moseley-Braun.  And  I  would  ask,  I  see  from  your  cre- 
dentials you  have  written  regarding  women  in  the  criminal  justice 
system,  and  I  would  like  your  views  briefly  about  that  and  where 
you  see  us  going  in  terms  of  providing  initiatives,  reforms,  and  ac- 
tivities in  this  area. 

Ms.  Robinson.  Sure.  Senator,  I  did  have  the  opportunity  when 
I  was  at  the  ABA  back  in  the  1970's  to  help  found  a  resource  center 
on  women  offenders.  We  also  had  a  very  active  committee  on 
women  and  criminal  justice  that  looked  at  the  roles  of  women  as 
employees  in  the  criminal  justice  system,  victims,  the  area  of  sex- 
ual assault  and  domestic  violence,  and  women  offenders.  Sadly,  I 
think  many  of  the  problems  plaguing  this  area  are  still  with  us 
today  20  years  later,  I  would  say  maybe  particularly  in  the  area 
of  women  offenders.  We  have  recently  been  talking  with  the  Na- 
tional Association  of  Women  Judges  about  some  joint  work  on  this 
issue.  They  are  very  much  interested  in  it. 

I  think  there  have  been  gains  and  an  increasing  consciousness 
about  problems  relating  to  sexual  assault  and  domestic  violence.  I 
view  those  personally  as  high  priorities.  OJP  has  been  working  on 
those  issues,  and  we  will  continue  to  make  those  very  high  prior- 
ities. 

Senator  Moseley-Braun.  Finally,  with  regard  to  the  coordina- 
tion; I  could  not  agree  more  with  you  that  the  coordination  and  co- 
operation among  and  between  agencies  at  the  Federal  level  is  so 
vitally  important,  but  I  would  ask  you  what  initiatives  you  plan  to 
implement,  or  how  do  you  plan  to  impact  upon  coordination  with 
State  and  local  governments?  Because  one  of  the  complaints  that 
the  folks  out  in  the  communities  have  all  the  time  is  that  Washing- 
ton sucks  up  all  the  money  and  hires  people  to  study  issues  that 
they  are  out  having  to  address  and  deal  with  on  a  day-to-day  basis. 


380 

It  seems  to  me  that  there  is  an  awful  lot  of  good  experience  and 
expertise  at  the  State  and  local  level,  and  I  would  ask  you  what 
is  your  view  regarding  coordination  and  support  for  local  initiatives 
in  this  area? 

Ms.  Robinson.  Maybe  one  of  the  benefits  of  coming  into  govern- 
ment after  working  on  the  outside  with  the  Federal  Government  is 
that  you  do  retain  a  consumer  perspective  for  a  long  time.  I  worked 
during  my  ABA  years  very  closely  with  State  and  local  practition- 
ers around  this  country,  and  I  view  them  as  critical  partners  with 
OJP  in  making  any  progress  on  the  issues  of  crime  and  violence. 
OJP  and  its  predecessor  agencies  back  to  LEAA  have  viewed  State 
and  local  government  as  their  key  partners  in  making  change  and 
making  anything  happen.  So  that  is  very  deeply  ingrained  in  me 
as  my  philosophy,  and  I  think  partnership  has  got  to  be  our  watch- 
word. 

Senator  Moseley-Braun.  I  am  delighted  to  hear  that.  I  have  no 
farther  questions,  Ms.  Robinson.  Again,  thank  you  very  much  for 
your  opening  statement  and  for  your  candid  and  straightforward 
responses  to  Senator  Simpson  and  my  questions  this  morning. 

Ms.  Robinson.  Thank  you  very  much. 

[The  prepared  statement  of  Ms.  Robinson  follows:] 

Prepared  Statement  of  Laurie  O.  Robinson 

Madam  Chairwoman  and  Members  of  the  Committee:  I'm  pleased  to  be  here 
today.  Before  proceeding,  I'd  like  to  introduce  my  husband,  Sheldon  Krantz,  and  my 
11-year-old  son,  Teddy. 

I  can't  think  of  an  issue  of  greater  importance  to  the  people  of  this  country  today 
than  crime.  It  seems  so  clear  that  a  well  functioning  democracy  has  to  insure  that 
its  citizens  feel  safe  when  they're  going  to  school,  going  to  work,  going  shopping — 
or  just  taking  a  walk  on  a  nice  summer  night. 

I've  had  the  opportunity  over  the  past  20  years  to  work  with  people  from  all  parts 
of  the  criminal  justice  system — prosecutors,  corrections,  judges,  law  enforcement,  ju- 
venile justice — as  well  as  community  and  victims  groups.  They're  often  impatient — 
and  cynical — about  what  "Washington  can  do"  about  tnis  issue.  I  understand  their 
frustration.  But  despite  these  terrible  problems,  I'm  optimistic  about  our  ability  to 
help  communities  do  something  about  them.  I'm  optimistic  not  only  because  we  have 
sound  programs  in  the  areas  of  policing,  corrections,  and  prevention,  but  also  be- 
cause— as  I've  travelled  around  the  country — I've  had  a  chance  to  see  the  energy 
and  enthusiasm  at  the  community  level.  Neighborhood  groups  organizing — often 
without  any  government  money — to  patrol  their  neighborhoods,  run  after-school  pro- 
grams for  teens,  work  with  police  to  close  down  drug  markets.  Despite  the  cynicism 
that  "nothing  works,"  there  are  good  and  successful  programs  out  there — uke  the 
one-room  program  I  saw  in  an  L.A.  public  housing  facility  which  is  helping  kids  stay 
in  school  ancT  transition  into  jobs  after  graduation;  or  the  community  policing  pro- 
gram in  Chicago  called  CAPS,  which  is  operating  in  five  prototype  districts  and 
planning  to  expand  city-wide;  or  the  boot  camp  program  in  New  York  State  which 
is  helping  offenders — through  intensive  aftercare  programs — really  reintegrate  into 
their  communities. 

I  believe  the  Federal  Government  has  a  critical  role  to  play: 

•  First,  we  should  be  insuring  that  we  get  information  out  about  good  programs 
to  communities  that  need  ideas  on  where  to  start.  I  don't  think  the  Federal  Gov- 
ernment has  done  a  very  good  job  of  this  in  the  past.  Through  a  new  inter- 
departmental Internet-based  clearinghouse — PAVnet— OJP  is  taking  some  im- 
portant steps  in  that  direction. 

•  Second,  we  should  be  insuring  that  we  get  money  out  to  support  good  programs. 
We  know  from  our  research  that  there  are  effective  approaches  on  gangs,  polic- 
ing, prison  programs  and  new  law  enforcement  technology.  So  we  need  to  insure 
we're  spending  Federal  money  in  the  wisest  way  possible. 

•  Third,  we  need  to  insure  that  we  make  information  readily  accessible  to  State 
and  local  officials  about  how  to  get  Federal  money.  As  one  step  in  that  direction, 
we've  set  up  an  800  number  at  OJP  to  provide  information  and  one  stop  shop- 
ping about  grants. 


381 

I  know — from  many  years  working  with  OJP  from  the  outside — that  the  agency 
has  had  problems,  that  it  has  too  often  been  plagued  in  the  past  by  Bureau  in-fight- 
ing. I  want  to  tell  you  about  some  steps  the  Attorney  General  and  I,  in  my  acting 
capacity,  have  taken  in  recent  months  to  address  this,  with  the  assistance  of  many 
dedicated  OJP  employees: 

•  We've  set  up  coordinating  committees  of  program  staff  to  address  common  is- 
sues which  cut  across  the  OJP  bureaus— issues  like  FAMILY  VIOLENCE  and 
CRIMINAL  JUSTICE  INFORMATION  SYSTEMS. 

•  We've  coordinated  the  '94  OJP  Program  Plans  to  stress  common  themes  like  vi- 
olence reduction  and  youth  crime. 

•  We've  encouraged  an  unprecedented  number  of  JOINT  EFFORTS  among  the 
bureaus,  as  well  as  with  outside  agencies  like  the  State  Justice  Institute, 
HHH's  Center  for  Substance  Abuse  Treatment,  and  the  Department  of  Defense. 

•  And  we've  been  working  with  the  other  domestic  Federal  departments  to  share 
information  and  build  common  programs.  Earlier  this  week,  e.g.,  we  held  a 
major  conference  on  youth  violence — perhaps  a  first  as  an  event  planned  and 
cosponsored  by  seven  Federal  departments. 

So  /  am  optimistic  about  our  ability  to  help  State  and  local  governments  make 
progress  on  crime.  We  have  a  challenge — and  an  enormous  opportunity,  and  I'm 
honored  that  the  President  has  nominated  me  to  serve  as  the  Assistant  Attorney 
General  for  the  Office  of  Justice  Programs.  Thank  you. 

Senator  Moseley-Braun.  Our  next  nominee  is  Nancy  Gist.  Ms. 
Gist,  do  you  solemnly  swear  to  tell  the  truth,  the  whole  truth  and 
nothing  but,  so  help  you  God? 

Ms.  Gist.  I  do. 

Senator  Moseley-Braun.  Thank  you.  Senator  Simpson,  I  do  not 
know  if  you  were  here,  but  I  almost  feel  like  I  should  for  sure  turn 
this  over  to  you  because  I  have  already  stated  my  prejudice  on  the 
record  about  this  nominee.  She  is  a  friend  of  about  20  years  now, 
and  I  think  she  is  the  best  thing  since  sliced  bread.  [Laughter.] 

So  I  will  let  you  ask  whatever  questions  you  might  have. 

Senator  Simpson.  Well,  what  are  friends  for? 

Senator  Moseley-Braun.  Hey,  that  is  my  attitude.  Oh,  yes,  I  do 
not  know.  Do  you  have  family  introductions  or  friends  who  are  here 
with  you  today? 

TESTIMONY  OF  NANCY  E.  GIST,  BOSTON,  MA,  TO  BE  DIRECTOR 
OF  THE  BUREAU  OF  JUSTICE  ASSISTANCE 

Ms.  Gist.  I  do  not.  I  do  not  have  an  opening  statement  either, 
but  I  would  like  to  just  take  a  minute  and  state  to  you  how  hon- 
ored I  am  to  be  here,  to  have  been  nominated  by  the  President,  to 
have  the  confidence  of  Attorney  General,  and  I  will  be  happy  to  an- 
swer any  questions  either  of  you  may  have. 

Senator  Moseley-Braun.  All  right.  We  will  let  Senator  Simpson. 

QUESTIONING  BY  SENATOR  SIMPSON 

Senator  Simpson.  Well,  thank  you,  Madam  Chairwoman.  I  have 
looked  at  your  record  here,  your  work  and  your  academic  experi- 
ence and  law  school  experiences  and  the  fact  that  you  were  deputy 
chief  counsel  of  the  Committee  for  Public  Counsel  Services  in  Bos- 
ton and  then  Midwest  Legal  Services,  and  you  certainly  have  a  re- 
markable record,  and  you  probably  worked  to  help  get  this  woman 
elected,  too,  did  you  not? 

Ms.  Gist.  As  it  happened,  Senator,  I  was  prohibited  from  engag- 
ing in  that  type  of  activity  by  State  law  in  Massachusetts. 

Senator  Simpson.  That  is  good.  [Laughter.] 


382 

Senator  Moseley-Braun.  I  could  not  bring  her  home  to  Illinois 
so  she  could  vote.  I  mean  it  is  terrible. 

Senator  Simpson.  Well,  that  is  what  this  is  about.  Administra- 
tions change  and  then  Presidents  have  their  right  to  select  the  peo- 
ple they  want  to  have  them  assist.  Our  job  is  to  see  that  they 
are  qualified  professionally  and  temperamentally,  especially  with 
judges,  and  not  to  judge  their  ideological  bent.  That  is  nothing  that 
I  like  to  get  involved  in.  I  certainly  will  examine  into  temperament 
and  background  and  so  on,  but  I  am  sure  that  from  what  Senator 
Carol  Moseley-Braun  has  said  about  you,  that  you  are,  indeed, 
highly  capable  and  qualified.  In  my  review  you  spent  most  of  your 
life  and  all  of  your  working  career  in,  again,  major  urban  areas, 
Detroit.  I  went  to  Cranbrook  School  in  Detroit  for  1  year.  I  was  an 
incorrigible  and  they  sent  me  there  for [Laughter.] 

Ms.  Gist.  Really? 

Senator  Simpson.  For  kind  of  a  charm  school  experience,  and  it 
was  really  quite,  I  thought  it  was  as  far  east  as 

Senator  Moseley-Braun.  It  worked.  It  worked. 

Senator  Simpson.  That  was  as  far  east  as  you  could  ever  get 
when  I  was  in  Detroit.  It  was  a  great  experience,  and  Detroit  was 
certainly  one  of  the  great  cities  of  the  country  in  that  time,  and  it 
has  had  some  difficulties  in  past  times,  and  I  see  people  working 
hard  in  the  new  administration,  with  the  new  mayor,  to  bring  De- 
troit back  to  where  it  was  as  a  superb  city. 

You  have  worked  in  the  urban  areas,  and  now  you  come  to  this 
position  of  Director  of  the  Bureau  of  Justice  Assistance.  Again,  I  do 
not,  I  am  provincial  since  I  represent  a  very  small  State 
populationwise,  but  we  are  not  alone  in  our  interest  on  rural  areas 
and  rural  interests  with  regard  to  justice.  Do  you  think  you  can" 
have  that  proper  sensitivity,  if  you  will,  an  overused  word,  for  the 
very  real  but  different  crime  problems  affecting  rural  areas?  That 
is  rural  areas  in  New  York  State  or  Michigan  or  up  by  Petoskey 
or  wherever.  So  that  is  my  essential  question. 

Ms.  Gist.  Senator,  my  current  responsibilities  are  statewide  in 
Massachusetts,  and  although  maybe  our  rural  areas  are  not  quite 
as  rural  as  some  parts  of  Wyoming,  nonetheless  there  is  quite  a  di- 
versity of  population  centers  throughout  Massachusetts.  I  admit  to 
coming  into  the  job  with  the  assumption  that  the  worst  and  most 
violent  crimes,  and  the  worst  problems  were  in  the  major  urban 
areas.  I  quickly  learned  that  that  is  not  the  case,  that,  in  fact,  this 
epidemic  of  crime  and  violence  has  infected  every  community  in 
this  country  regardless  of  size,  suburban,  urban,  rural,  etc. 

When  I  met  with  Senator  Grassley  a  few  months  ago,  we  dis- 
cussed this  subject,  and  I  am  aware  of  the  feeling  that,  as  Laurie 
Robinson  has  indicated,  enough  has  not  been  done,  enough  atten- 
tion has  not  been  given  to  rural  areas  because  of  the  built-in  as- 
sumptions about  where  the  real  problems  lie.  If  I  am  confirmed,  I 
am  committed  to  making  certain  that  our  attention  is  expanded 
into  every  community  and  that  the  BJA's  resources  are  directed  in 
a  manner  that  reflects  the  problems  in  every  community  in  the 
country. 

I  will  say  that  clearly  the  BJA  can  do  but  so  much  with  its  lim- 
ited discretionary  funding.  So  the  real  issue,  I  think,  is  going  to  be 
working  in  partnership  with  the  States  to  make  sure  that  the  alio- 


383 

cation  of  the  formula  funding  is  done  with  more  sensitivity  to  the 
rural  areas. 

Senator  Simpson.  Of  course,  under  the  crime  bill,  if  we  get  that 
resolved,  would  be  tremendous  funding  mechanisms.  I  think  one  of 
the  things  that  is  being  resolved  that  I  share  with  my  colleague  is 
that  the  money  will  go  out  in  the  form  of  block  grants  where  people 
can  do  with  the  moneys  as  they  choose,  such  as  the  remarkable 
proposal  of  my  colleague,  which  was  in  regard  to  a  night-time  ac- 
tivity, midnight  basketball.  That  to  me  is  something  very  impor- 
tant. Athletics  helped  save  me  from  the  primrose  path  to  some  de- 
gree, and  basketball  particularly. 

So  I  think  that  is  very  good,  and  I  think  we  are  going  to  do  that 
in  a  way  where  we  get  block  grants  out,  and  then  you  do  with  it 
what  is  best  in  your  community  instead  of  having  the  Attorney 
General  just  parcel  it  out  and  say,  "here  is  this  for  you,  and  this 
for  you,  and  I  hope  we  can  resolve  that."  But  as  organized  crime 
and  the  drug  trade  see  themselves  under  greater  surveillance  in 
the  urban  areas,  they  have  learned  very  well  how  to  use  the  rural 
areas  for  their  activity.  Would  you  concur  with  that? 

Ms.  Gist.  I  would.  I  was  recently  contacted  by  the  court  in  west- 
ern Massachusetts  in  a  very  small  town  in  the  Berkshire  Moun- 
tains and  was  informed  that  there  was  a  huge  influx  from  New 
York  City  of  what  are  known  as  mules,  persons  carrying  and  sell- 
ing drugs  in  relatively  small  amounts,  that  was  putting  a  tremen- 
dous stress  on  their  county  jail  out  there  and  on  their  courts.  In- 
creasingly, as  you  point  out,  this  is  happening.  I  am  well  aware  of 
it,  and  I  am  certain  that  if  I  am  confirmed  we  will  see  to  it  that 
the  BJA  pays  careful  attention  to  the  problems  in  those  areas. 

Senator  Simpson.  One  final  question,  Ms.  Gist.  In  the  course  of, 
again,  the  crime  bill  debate,  how  topical  it  is  to  us,  we  have  heard 
a  lot  of  discussion  about  the  relative  merits  of  various  approaches 
to  controlling  the  national  epidemic  of  violent  crime.  Do  you  think 
the  funding  of  prevention  efforts  really  make  the  greater  difference, 
in  your  mind,  do  we  need  more  police,  prosecutors,  and  prisons? 
What  is  your  view  on  that? 

Ms.  Gist.  Senator,  I  think  we  can  always  do  more  for  law  en- 
forcement, but  I  also  think  there  is  a  role  for  prevention  programs 
for  attempting  to  prevent  crime  in  the  first  place,  and  I  think  that 
one  of  the  reasons  that  there  has  been  such  tremendous  support  in 
the  law  enforcement  community  for  the  crime  bill  is  that  tnere  is 
perceived  to  be  a  balance  between  funding  of  police,  punishment, 
and  prevention.  To  the  extent  that  there  are  programs  con- 
templated which  will  keep  young  people  off  the  streets,  involve 
them  in  positive  activities  where  they  have  an  opportunity  to  inter- 
act positively  with  law  enforcement  personnel.  For  instance,  in 
some  of  the  basketball  leagues,  many  of  which  are  sponsored  by  po- 
lice departments  across  the  country,  where  they  can  be  involved  in 
structured  activities,  possibly  learn  some  job  skills  and  that  type 
of  thing. 

All  of  that  is  to  the  better.  On  the  other  side  of  that  is  the  per- 
ception, perception  being  reality.  I  know  in  my  neighborhood  when 
there  are  groups  of  young  men  standing  around,  people  feel  less  se- 
cure. When  the  kids  are  off  playing  ball  or  whatever  and  the 
streets  are  not  clogged  with  young  people  standing  around  with 


384 

nothing  to  do,  there  is  a  perception  that  people  are  going  to  feel 
safer  in  the  same  way  an  increased  police  presence  contributes  to 
the  perception  that  people  are  going  to  be  safer.  So  I  would  suggest 
that  a  balance  between  prevention  and  punishment  and  police  is 
appropriate.  There  is  a  role  for  every  good  idea  that  we  can  come 
up  with  to  try  to  wrestle  with  this  problem  and  get  it  under  con- 
trol, and  I  think  that  although  there  is  a  tremendous  need  at  all 
times  for  all  the  support  that  we  can  possibly  give  to  law  enforce- 
ment, there  is  a  role  for  prevention  as  well. 

Senator  Simpson.  I  thank  you.  There  was  one  phrase,  two  words 
you  used,  "job  training."  But  I  have  been  here  for  15  years,  and  we 
now  have  154  job  training  programs  spread  through  the  bureauc- 
racy, costing  $25  billion,  and  they  do  not  work.  Senator  Kennedy, 
Senator  Kassebaum,  and  Secretary  Robert  Reich  are  trying  to  work 
toward  some  kind  of  consolidation  because  that  is  just  something 
we  use.  It  is  a  key  word.  You  just  say  "job  training"  and  you  go 
vote  automatically,  but  they  do  not  work.  And  as  I  say,  154,  taking 
$24.5  billion,  and.  we  do  not  see  them  having  an  effect.  I  know  it 
is  not  in  your  area,  but  it  is  something  in  the  area  of  a  bipartisan 
approach,  as  to  how  we  consolidate  these?  What  do  we  do?  Thank 
you  very  much. 

Ms.  Gist.  Thank  you,  Senator. 

QUESTIONING  BY  SENATOR  MOSELEY-BRAUN 

Senator  Moseley-Braun.  Ms.  Gist,  being  since  I  have  already 
stated  our  friendship  for  the  record,  I  get  to  ask  you  the  hard  ques- 
tions. 

Ms.  Gist.  I  might  have  guessed. 

Senator  Moseley-Braun.  I  mean  that  is  what  friends  are  for, 
right,  to  ask  the  hard  questions? 

Senator  Simpson.  I  want  to  see  those. 

Senator  Moseley-Braun.  No,  well,  you  know,  actually  I  do  have 
one.  [Laughter.] 

Just  one  question.  I  think  it  is  an  important  one,  though,  to  ex- 
plore on  the  record  and  to  have  your  public  responses  to  because 
your  background  over  the  years  has  been  in  legal  services  and  in 
frankly  fighting  the  forces  of  power  in  behalf  of  the  little  guy,  but 
at  the  same  time  you  are  coming  into  a  job  that  is  part  and  parcel, 
a  major  part,  of  the  law  enforcement  community,  and  that  commu- 
nity has  expressed,  as  you  are  no  doubt  aware,  no  small  amount 
of  anxiety  around  whether  or  not  you  will  be  able  to  develop  the 
relationships  and  to  actually  listen  and  be  able  to  hear  what  local 
law  enforcement  has  to  say  about  these  issues. 

So  my  question  to  you  would  be,  what  can  you,  for  the  record, 
state  in  terms  of  your  approach  to  the  development  of  the  relation- 
ships toward  assuring  local  law  enforcement  professionals  that  you 
are  going  to  be,  that  you  are  committed  to  aggressive  law  enforce- 
ment, committed  to  listening  to  them,  to  taking  their  input,  to  de- 
veloping again  the  kind  of  working  relationship  with  the  people 
who  have  been  on  the  other  side  of  the  bench,  if  you  will,  all  these 
years? 

Ms.  Gist.  Thank  you  for  asking  the  inevitable  question.  I  was 
asked  this  same  question  albeit  somewhat  more  pointedly  when  I 
met  with  a  group  of  about  a  dozen  representatives  of  police  organi- 


385 

zations  a  few  months  ago.  I  will  tell  you  what  I  told  them.  I  have 
spent  10  years  in  the  criminal  justice  system  in  Massachusetts.  I 
have  a  real  sensitivity  to  BJA  consumers,  to  the  people  who  will 
be  consuming  BJA  services  because  these  have  been  my  colleagues 
throughout  my  10  years  in  the  criminal  justice  system  in  Massa- 
chusetts. 

I  am  absolutely  committed  to  the  principle  that  every  American 
citizen  is  entitled  to  competent  legal  representation,  and  I  am  very 
proud  of  the  work  that  I  have  done,  that  my  agency  has  done  over 
the  past  years  to  contribute  to  a  more  smoothly  functioning  crimi- 
nal justice  system.  However,  that  does  not  mean  for  one  moment 
that  I  am  not  every  bit  as  frustrated  and  angry  as  anyone  else 
about  this  epidemic  of  violence,  that  I  am  not  as  interested  in  feel- 
ing secure  in  my  home  and  on  my  street  as  anyone  else,  and  that 
I  am  not  only  unusually  sensitive,  but  in  any  case,  extremely  sen- 
sitive to  the  fact  that  my  community,  my  neighborhood,  and  my 
block  are  in  many  ways  disproportionately  affected  by  what  is 
going  on  in  this  country  today. 

My  role  in  Massachusetts  has  required  me  to  develop  very  good 
working  relationships  with  criminal  justice  practitioners  from 
across  the  system,  from  law  enforcement,  through  the  court  system, 
the  prosecution  as  well  as  the  corrections  and  probation  end  of 
things.  I  have  no  reason  to  believe  that  I  would  have  any  difficulty 
establishing  similar  relationships  and  partnerships  with  every  as- 
pect of  the  criminal  justice  system  if  I  am  confirmed  as  director  of 
the  BJA.  I  view  this  opportunity,  if  I  am  confirmed  to  serve  as  di- 
rector, as  an  extraordinary  one  to  work  with  this  administration, 
the  President,  the  Attorney  General,  the  Congress,  the  law  enforce- 
ment community  on  trying  to  come  to  grips  with  this  problem.  I 
bring  a  tremendous  amount  of  energy.  I  bring  experience  in  the 
criminal  justice  system  and  a  determination  that  the  young  people 
who  are  at  risk  in  this  society  somehow  get  turned  around,  that 
citizens  be  able  to  feel  secure  on  the  streets  and  in  their  homes, 
and  that  if  there  is  any  role  that  I  can  play,  I  bring  a  lot  to  it,  and 
I  believe  that  I  will  be  able  to  accomplish  here  what  I  was  able  to 
accomplish  in  Massachusetts  in  terms  of  working  in  partnership 
with  people  who  are  trying  to  get  together,  who  need  to  be  sitting 
down  together  rather  than  working  in  a  sort  of  adversarial  way,  all 
coming  together  to  try  to  bring  everything  we  all  have  to  bear  to 
address  this  problem. 

Senator  Moseley-Braun.  All  right.  Thank  you  very  much.  I  have 
no  further  questions,  Ms.  Gist.  Thank  you  very  much  for  your  par- 
ticipation. 

Ms.  Gist.  Thank  you,  Madam  Chair,  Senator. 

Senator  Moseley-Braun.  Thank  you. 

The  next  nominee  is  Jan  Chaiken,  who  has  been  nominated  for 
the  Bureau  of  Justice  Statistics.  Mr.  Chaiken,  do  you  swear  that 
the  testimony  you  shall  give  in  this  proceeding  will  be  the  truth, 
the  whole  truth  and  nothing  but  the  truth,  so  help  you  God? 

Mr.  Chaiken.  I  do. 

Senator  Moseley-Braun.  Thank  you.  Mr.  Chaiken,  if  there  are 
any  of  your  family  members  here  today,  you  will  introduce  them  to 
us  at  this  point. 


386 

TESTIMONY  OF  JAN  M.  CHAIKEN,  LINCOLN,  MA,  TO  BE 
DIRECTOR  OF  THE  BUREAU  OF  JUSTICE  STATISTICS 

Mr.  Chaiken.  I  would  like  to  introduce  my  wife  Marcia.  Marcia 
has  been  my  colleague  in  a  lot  of  the  research  that  I  have  done 
over  the  last  years,  and  I  dare  say  that  the  best  research  that  I 
have  done  has  been  jointly  with  her.  We  have  a  close  family  friend, 
Nina  Golden,  whose  home  is  in  California,  and  we  have  known  her 
since  we  lived  there.  She  recently  received  her  law  degree,  and  in 
this  room  there  are  a  lot  of  people  that  she  can  emulate  in  her  fu- 
ture career. 

Senator  Moseley-Braun.  Congratulations.  All  right.  Dr. 
Chaiken,  Senator  Simpson,  would  you  like  to  start? 

QUESTIONING  BY  SENATOR  SIMPSON 

Senator  Simpson.  I  would,  Madam  Chairwoman,  if  I  may.  Dr. 
Chaiken,  again,  I  have  reviewed  your  material,  your  work  at  Cam- 
bridge, and  is  that  Abt  Associates? 

Mr.  Chaiken.  Yes,  it  is. 

Senator  Simpson.  Abt  Associates  is  under  contract  with  the  Bu- 
reau of  Justice  Statistics,  and  you  have  written  extensively,  and  co- 
authored  various  articles.  That  is  an  impressive  array  of  material. 
I  would  ask,  are  there  ways  to  improve  the  timeliness  and  useful- 
ness of  factual  information  needed  by  or  of  interest  to  Senators  and 
their  staffs  about  the  operations  of  criminal  justice  agencies  or 
other  statistics  that  are  available  at  the  Bureau  of  Justice  Statis- 
tics but  perhaps  are  not  widely  known?  I  think  that  my  colleague 
would  share  with  me  that  the  press  of  time  in  this  place  and  the 
just  metric  tons  of  stuff  that  come  to  us,  and  they  do  little  good  be- 
cause they  just  stack  up,  and  somebody  must  read  them,  perhaps 
the  staff,  and  yet  our  staffs,  members  of  our  staff  are  stretched  be- 
yond their  endurance.  How  do  we  improve  the  timeliness  and  use- 
fulness of  things  for  our  purposes?  Do  you  have  any  thoughts  on 
that?  That  is  very  broad  and  loose. 

Mr.  Chaiken.  Yes,  thank  you,  Senator.  This  is  an  area  that  has 
concerned  me,  and  certainly  statistics  agencies  put  out  annually 
large  quantities  of  paper  which  are  difficult  to  consume  at  the  mo- 
ment that  the  information  is  needed.  Now  on  the  staffs  of  the  Sen- 
ate and  House  committees,  especially  this  committee,  you  have  peo- 
ple who  are  very  well  trained  in  criminal  justice  issues  and  ask  for 
the  right  information  and  know  how  to  use  it  if  they  can  get  it.  If 
confirmed,  I  am  committed  to  improving  the  electronic  access  to  the 
most  up  to  date  information  that  is  available  and  to  preparing 
briefings  and  other  information  for  congressional  staff  people  who 
may  need  to  be  informed  about  forthcoming  issues. 

So  I  would  like  to  focus  on  the  users  of  the  information  and  less 
on  public  just  being  content  to  make  sure  that  pieces  of  paper  have 
arrived  on  the  desks  of  staffers. 

Senator  Simpson.  Dr.  Chaiken,  as  Director  of  the  Bureau  of  Jus- 
tice Statistics — and  this  is  not  directed  at  this  administration,  as 
I  say  it  is  from  my  experience  and  observation  since  1979 — how 
will  you  handle  pressure  from  the  Attorney  General  or  the  White 
House  regarding  the  timing  or  content  of  reports  about  crime  rates, 
prison  populations,  or  other  statistical  topics  which  may  be  of  cur- 
rent political  interest? 


387 

Mr.  Chaiken.  Well,  Senator,  I  am  quite  familiar  over  the  years 
with  the  staff  of  the  Bureau  of  Justice  Statistics,  and  there  is  a 
very  professional  staff  there  that  is  deeply  concerned  about  this 
issue  and  their  independence  from  fads  either  of  a  research  nature 
or  of  a  political  nature  that  might  influence  the  kinds  of  statistics 
that  are  generated.  My  understanding  is  that  the  Bureau  of  Justice 
Statistics  has  complete  control  over  its  statistical  publications,  the 
content  of  them,  and  the  timing  of  their  release. 

I  would  certainly  insist  on  that  degree  of  independence  because 
the  Nation's  respect  for  its  crime  statistics  rests  in  part  on  believ- 
ing that  they  are  impartial  and  professionally  prepared  and  not 
subject  to  the  winds  of  political  or  current  developments.  I  do,  I 
have  heard  and  I  do  understand  that  in  regard  to  press  releases 
that  accompany  release  of  statistical  information,  that  those  are 
prepared  by  an  office  at  the  Office  of  Justice  Programs  and  are  co- 
ordinated with  the  Justice  Department,  and  the  statistics  are  re- 
leased to  the  press  in  the  name  of  the  Justice  Department  which 
I  think  is  a  good  development  rather  than  to  try  to  isolate  that 
they  come  from  the  Bureau  of  Justice  Statistics  or  some  other 
place. 

However,  to  the  extent  that  there  are  any  influences  in  regard 
to  the  press  release  process,  I  believe  the  director  still  has  the  au- 
thority to  release  the  statistical  report  and  to  maintain  complete 
control  over  its  content  without  outside  interference,  and  we  appre- 
ciate the  fact  that  this  position  is  a  Presidential  appointment  sub- 
ject to  Senate  confirmation  because  it  does  give  the  crime  statistics 
of  this  country  a  stamp  of  approval  by  more  than  just  the  current 
administration. 

Senator  Simpson.  My  experience  and  observation  is  as  yours, 
that  these  are  fine  professional  people  in  this  area  who  really  do 
their  work  without  the  feeling  of  political  impact.  But  once  they 
finish,  it  does  get  a  little  shaded,  and  it  is  holding  something  back 
or  putting  a  spin  on  it  in  some  way  that  was  not  the  effort  of  those 
who  had  worked  so  hard  on  it.  It  is  a  strange  community.  If  you 
really  are  looking  for  statistics  that  will  support  your  case,  you  will 
find  them  in  Washington,  DC.  You  just  keep  shopping  until  you  get 
the  independent  contractor  or  the  agency  that  will  give  you  the  sta- 
tistics you  are  seeking,  and  it  is  a  noble  thing  to  watch,  disturbing 
but  noble.  But  I  wish  you  well,  and  I  think  you  will,  from  every- 
thing I  see,  do  it  with  a  high  degree  of  professionalism,  and  you 
certainly  have  an  impressive  background.  Thank  you,  Madam 
Chairman. 

Mr.  Chaiken.  Thank  you,  Senator. 

QUESTIONING  BY  SENATOR  MOSELEY-BRAUN 

Senator  Moseley-Braun.  Thank  you  very  much,  Mr.  Senator. 
You  know  I  do  not  know  who  it  was,  and  I  am  going  to  look  this 
up,  the  quote,  "Lies,  damn  lies  and  statistics."  I  do  not  know  who 
made  that  up,  but 

Senator  Simpson.  Yes,  who  was  that? 

Senator  Moseley-Braun  [continuing].  We  are  all  aware  of  the 
notion  that  obviously  it  is  the  integrity  of  the  information  that  is 
so  critical.  And  Senator  Simpson  in  his  question  got  to  the  issue 
of  the  integrity  of  the  information  that  this  bureau  will  dissemi- 


388 

nate.  So  I  have  kind  of  a  series  of  questions,  actually  it  is  one  ques- 
tion, but  there  is  a  series  of  issues  that  the  question  raises,  and 
that  for  me  is  exactly  how  do  you  plan,  what  is  your  vision  for  en- 
suring the  integrity,  the  accuracy,  and  the  timeliness  of  the  infor- 
mation that  the  bureau  collects  and  disseminates?  We  have  seen 
right  now  the  bureau  contracts  a  large  part  of  its  work  from  the 
Census  Bureau,  and  yet  we  have  seen  in  recent  times  census  find- 
ings thrown  out  for  undercounting  minority  populations  and  the 
like. 

I  mean  a  court  recently  in  Illinois — it  was  in  Illinois;  right?  Well, 
in  any  event,  in  Illinois  there  was  a  recent  decision  having  to  do 
with  the  census  undercount,  and  so  the  census  figures  have  been 
challenged.  Yet  a  lot  of  what  the  bureau  does  is  dependent  on  those 
now  challenged  numbers.  That  also  gets  to  the  fact  that  very  often 
the  local  governments,  and  again  I  am  speaking  specifically  about 
local  law  enforcement  because  my  coming  up  through  State  and 
local  government  I  have  more  dealings  with  local  law  enforcement, 
and  it  is  not  infrequent  or  uncommon  to  hear  from  local  law  en- 
forcement people  that,  you  know,  where  are  these  guys  getting 
their  numbers  from?  Mars  or  what?  This  does  not  reflect  the  reality 
that  we  are  dealing  with.  They  did  not  even  ask  for  our  numbers. 
This  happens  a  lot. 

So  my  question  to  you  becomes,  then,  one,  how  do  you  plan  on 
coordinating  or  consulting  with  the  locals  in  pursuit  of  direct 
sources  of  information?  How  do  you  see,  what  steps  do  you  see  nec- 
essary to  ensure  the  integrity  of  the  information  that  you  compile, 
that  this  bureau  will  compile?  How  do  you  foresee  taking  advan- 
tage of,  consulting  with,  coordinating  with  other  agencies  of  the 
Federal  Government?  So  you  are  talking  two  ways,  both  local  up 
and  down,  and  then  across,  and  then  finally  to  disseminate  the  in- 
formation to  us.  I  mean  in  this  time  of  the  information  super- 
highway, hopefully  there  will  be  more  and  more  opportunities  for 
us  to  be  able  to  access  directly  the  information  that  you  have.  And 
so  I  know  that  is  a  lot  of  questions,  but  they  are  all  kind  of  iter- 
ations on  the  same  issue,  the  information  gathering  process,  how 
do  you  see  that,  and  what  changes,  if  any,  you  will  undertake  with 
regard  to  that,  and  then  with  regard  to  disseminating  information 
to  us,  what  is  your  vision  in  that  regard? 

Mr.  Chaiken.  Well,  you  are  correct  that  the  Bureau  of  Justice 
Statistics  undertakes  some  data  collection  efforts  on  its  own  or 
with  interagency  agreements  with  the  Census  Bureau.  In  addition, 
however,  there  are  Federal,  State  and  local  agencies  that  are  data 
collection  and  statistics  agencies.  So  going  back,  as  far  back  as  the 
1930's,  the  FBI  has  been  collecting  data  directly  from  local  law  en- 
forcement agencies  about  the  extent  of  crime  that  is  known  to 
them,  known  to  the  police  agencies,  and  at  the  same  time  for  about 
20  years  or  more,  the  Bureau  of  Justice  Statistics  has  been  collect- 
ing information  from  the  victims  of  crime. 

One  of  my  goals,  if  I  am  confirmed,  is  to  make  a  greater  effort 
of  an  analytical  nature  to  bring  these  disparate  sources  of  informa- 
tion together  and  to  study  them  and  to  see  what  are  the  overall  im- 
plications, not  to  pay  special  attention  to  a  data  source  just  because 
the  Bureau  of  Justice  Statistics  has  collected  that  particular  data, 
but  rather  to  bring,  to  assemble  together  from  State  and  local  and 


389 

other  places  where  similar  data  are  provided,  and  to  analyze  it  to- 
gether and  to  come  to  the  best  overall  impression  of  what  the  data 
means.  So  I  will  be  committed  to  that.  Would  you  like  me  to  inter- 
rupt for  Representative  Markey? 

Senator  Moseley-Braun.  Well,  I  understand  Representative 
Markey  just  came  in,  and  we  are  delighted  to  have  him.  I  know 
how  busy  he  is  on  the  House  side  and  how  long  it  takes  to  get  from 
one  side  of  this  building  to  the  other.  Welcome,  Representative 

Markey. 

Mr.  Markey.  Thank  you. 

Senator  Moseley-Braun.  Representative  Markey,  you  should 
know  that  Mr.  Chaiken  has  already  started  and  is  comporting  him- 
self very  well,  but  we  would  love  to  have  your  introduction  at  this 
point.  Come  join  us. 

STATEMENT  OF  HON.  EDWARD  J.  MARKEY,  A  REPRESENTA- 
TIVE IN  CONGRESS  FROM  THE  STATE  OF  MASSACHUSETTS 

Representative  Markey.  Thank  you,  Madam  Chairman,  Senator. 

Senator  Simpson.  How  do  you  do,  Ed? 

Representative  Markey.  Very  well,  thank  you.  You  have  an  ex- 
traordinarily well  qualified  candidate  before  you  today,  and  I  ap- 
preciate this  opportunity  to  speak  on  behalf  of  this  widely  re- 
spected researcher  in  the  criminal  justice  field  who  I  am  confident 
will  be  an  exemplary  director  of  the  Bureau  of  Justice  Statistics. 
As  negotiations  over  this  crime  bill  continue,  President  Clinton  and 
this  administration  have  added  an  experienced  analyst  to  the  law 
enforcement  team.  Dr.  Chaiken  currently  is  a  special  assistant  to 
the  Assistant  Attorney  General  for  Justice  Programs  after  serving 
most  recently  as  director  of  the  Federal  Justice  Statistics  Project 
at  Abt  Associates  in  Cambridge  up  in  Massachusetts. 

He  has  published  important  studies  on  the  relationship  between 
drug  use  and  crime  and  designed  an  innovative  software  package 
for  police  car  allocation  which  is  used  by  law  enforcement  agencies 
around  the  U.S.  and  abroad.  His  research  has  focused  on  develop- 
ing and  applying  methods  for  improving  operations  of  criminal  jus- 
tice agencies.  He  has  worked  on  criminal  justice  policy  with  the 
California  Corrections  Department,  the  Kings  County  district  attor- 
ney's office  in  Brooklyn,  the  Los  Angeles  sheriffs  department  and 
the  Massachusetts  Committee  on  Criminal  Justice.  He  has  also 
taught  mathematics  at  Cornell,  MIT,  and  UCLA. 

Dr.  Chaiken's  family,  which  is,  I  am  sure,  very  proud  of  him 
today,  also  is  established  as  an  academic  powerhouse.  Jan  has  pub- 
lished his  best-known  works  with  his  wife,  Dr.  Marcia  Chaiken, 
and  both  of  their  children  have  also  completed  their  doctorates  so 
without  question  it  is  a  family  tradition  of  commitment  to  excel- 
lence in  the  development  of  the  kinds  of  information  which  Dr. 
Chaiken  will  be  responsible  for  in  the  Federal  Government,  and  I 
wholeheartedly  endorse  his  candidacy  and  hope  that  the  committee 
would  see  fit  to  give  him  a  speedy  confirmation.  Thank  you. 

Senator  Moseley-Braun.  Thank  you  very  much,  Representative 
Markey,  and  again  thank  you  so  much  for  taking  time  out  of  your 
busy  day  to  come  over  and  join  us  this  morning. 

Senator  Simpson.  Congressman  Markey,  how  are  things  going 
over  there?  [Laughter.] 


390 

You  can  tell  us,  Ed.  There  is  no  one  here. 

Representative  Markey.  Funny.  We  were  just  talking  about  you 
this  morning.  [Laughter.] 

Your  name  is  quite  prominently  mentioned,  and  if  I  could  give 
you  a  blow-by-blow  description  of  the  Democratic  Caucus,  which  I 
just  left,  which  moves  between  the  important  subjects  of  the  crime 
bill,  the  health  care  bill,  and  when  we  are  getting  out  for  vacation 
in  an  almost  ongoing  and  impossible  to  completely  analyze  political 
EST  session,  which  gives  some  sustenance  for  the  continuation  of 
activity  for  the  rest  of  the  day,  but  I  do  not  think  sufficient  to  obvi- 
ate the  need  for  us  to  do  the  same  thing  tomorrow  morning  to  give 
us  motivation  to  continue  in  the  present  environment. 

We  enjoy  the  opportunity  to  try  to  understand  the  internal  work- 
ings of  the  Senate,  as  you 

Senator  Simpson.  Madam  Chairwoman,  I  met  Congressman  Mar- 
key  when  I  came  here.  We  started  off  on  a  rocky  note  back  in  1979 
or  1980  and  since  then,  like  it  always  is  the  case,  you  get  to  know 
someone,  work  with  them,  and  he  is  a  superb  gentleman,  and  I 
enjoy  him  very  much,  and  we  have  had  some  very  interesting 
times,  and  we  both  severely  overmarried.  [Laughter.] 

Representative  Markey.  We  married  up.  No  question. 

Senator  Simpson.  We  married  up  very  much. 

Senator  Moseley-Braun.  Well,  Senator  Simpson,  I  must  tell  you 
I  am  looking  forward  to  learning  the  inner-workings  of  the  Senate 
as  much  as  Representative  Markey  is.  [Laughter.] 

Senator  Simpson.  Well,  if  they  do  not  mess  with  the  filibuster, 
we  will  not  mess  with  their  Rules  Committee. 

Senator  Moseley-Braun.  OK.  Thank  you  very  much.  Represent- 
ative, for  joining  us.  Mr.  Chaiken,  I  will  be  done  just  in  1  second. 
I  guess  the  last  part  of  your  response. 

Mr.  Chaiken.  Actually  I  would  like  to  address  the  first  part  of 
your  question  about  the  Census  Bureau. 

Senator  Moseley-Braun.  Yes.  Please  understand  before  you  do, 
I  do  not  mean  to  be  overly  critical  of  what  is  going  on  now.  I  just 
wanted  to  raise  the  fact  that  these  concerns  have  been  expressed 
regarding  the  integrity  of  the  information,  the  process  for  gathering 
it,  and  the  like. 

Mr.  Chaiken.  It  is  true  that  the  Census  Bureau  staff  provide  the 
interviewing  and  data  collection  and  initial  data  processing  activi- 
ties for  the  Justice  Department's  victimization  survey.  But  it  is  not 
the  same  sampling  methods  or  interviewing  methods  that  are  used 
for  the  decennial  census.  The  work  of  the  people  at  the  Census  Bu- 
reau is  under  close  observation  by  a  distinguished  advisory  group 
which  is  assembled  by  the  American  Statistical  Association,  and 
they  use  in-person  interviews  and  random  digit  dialing  methods 
and  computerized  interviewing  techniques  which  are  not  yet  part 
of  the  regular  census  that  is  counting  people.  So  it  is  a  very  quali- 
fied staff,  but  they  are  not  following  the  same  procedures  that  have 
led  to  the  difficulties  that  you  have  indicated  are  emerging  in  some 
court  cases  regarding  the  census  count. 

The  victimization  survey  numbers  are  in  no  way  dependent  on 
what  the  decennial  census  numbers  are  for  the  same  localities. 
They  are  a  separate  operation.  Now  I  certainly  intend,  if  confirmed, 
to  look  carefully  into  all  those  procedures  and  I  cannot  tell  you  that 


391 

they  are  perfect  as  they  stand,  but  they  do  have  the  respect  of  the 
criminal  justice  research  community. 

I  would  also  like  to  mention  that  my  family,  when  we  lived  in 
Los  Angeles,  was  selected  in  the  sample  for  the  victimization  sur- 
vey. So  we  have  personally  experienced  the  interviewer  from  the 
Census  Bureau  coming  to  our  home  twice  a  year  and  asking  us  em- 
barrassing questions. 

Senator  Moseley-Braun.  That  really  is  extraordinary.  I  have  yet 
to  meet  anyone  who  has  been  surveyed  under  the  Nielsen  ratings, 
for  example.  One  last  question  which  again  was  the  second  part  of 
the  question,  and  I  may  have  used  too  many  words,  but  that  was 
the  question  of  disseminating  information  to  us  here  in  the  Con- 
gress and  taking  advantage  of  Internet  or  whatever  computer  or 
electronic  information  transmission  opportunities  may  exist  to  get 
us  information.  We  were  working  on  an  issue  having  to  do  with 
State  prisoners  and  the  information  available  to  staff  was  based  on 
a  1991  survey.  I  have  got  to  believe  that  in  some  of  these  instances, 
not  all  certainly,  but  some,  there  is  more  current  data  that  if  given 
an  opportunity  to  access  it,  the  staffs  would  be  able  to,  and  that 
would  help  us  do  our  job. 

Mr.  Chaiken.  Well,  I  already  did  mention  this  in  answer  to  the 
question  from  Senator  Simpson,  but  to  emphasize,  if  confirmed, 
this  is  going  to  be  one  of  my  highest  priorities,  to  get  the  Justice 
statistics  system  into  readily  available,  user-friendly,  electronic 
form.  Some  of  the  time  delays  that  you  mentioned  are  inevitable 
in  terms  of  if  a  survey  is  fielded  in  all  the  Nation's  prisons,  you 
can  imagine  it  takes  awhile  to  accomplish  that  and  to  generate  the 
numbers.  But  in  terms  of  Senate  staffers  or  a  Governor's  staff  or 
police  agency  staff  having  rapid  access  to  whatever  is  the  latest  in- 
formation in  a  form  that  they  can  understand  and  download  rap- 
idly, I  am  strongly  committed  to  accomplishing  that. 

Senator  Moseley-Braun.  All  right.  Thank  you  again  very  much, 
Dr.  Chaiken. 

Senator  Simpson.  Thank  you  very  much. 

Senator  Moseley-Braun.  Thank  you. 

Our  next  nominee  is  Jeremy  Travis  to  be  Director  of  the  National 
Institute  of  Justice.  Mr.  Travis,  raise  your  right  hand,  please. 
Thank  you.  Do  you  swear  that  the  testimony  you  will  give  in  this 
proceeding  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  so  help  you  God? 

Mr.  Travis.  I  do. 

Senator  Moseley-Braun.  Mr.  Travis,  if  there  are  members  of 
your  family  or  friends  here  with  you  today,  would  you  introduce 
them  at  this  time? 

TESTIMONY  OF  JEREMY  TRAVIS,  NEW  YORK,  NY,  TO  BE 
DIRECTOR  OF  THE  NATIONAL  INSTITUTE  OF  JUSTICE 

Mr.  Travis.  Yes,  my  wife  Susan  Herman  is  here,  who  was  al- 
ready introduced  by  Senator  D'Amato. 
Senator  Moseley-Braun.  All  right.  Senator  Simpson. 

QUESTIONING  BY  SENATOR  SIMPSON 

Senator  Simpson.  Thank  you  very  much,  Madam  Chairwoman.  I 
have  read,  of  course,  the  material  with  regard  to  you,  sir,  and 


392 

noted  that  you  served  as  clerk  for  a  year  with  Ruth  Bader  Gins- 
burg,  and,  of  course,  she  was  well  received  by  this  committee  and 
is  now  serving  on  our  U.S.  Supreme  Court.  And  that  you  also  were 
heavily  involved  with  our  old  friend,  Ed  Koch. 

Mr.  Travis.  That  is  true. 

Senator  Simpson.  He  is  a  great  fellow.  I  met  him  when  I  first 
came  here  and  always  enjoyed  his  spirit  and  energy,  and  please 
communicate  my  high  regard  to  him  when  you  see  him. 

Mr.  Travis.  I  shall  do  that. 

Senator  Simpson.  Did  you  actually  write  a  speech  or  two  for 
him? 

Mr.  Travis.  I  wrote  the  speech.  Whether  he  gave  the  speech  that 
I  wrote  is  a  separate  question.  [Laughter.] 

Senator  Simpson.  My  hunch  is  that  he  did  not  and  went  off  with 
his  own  vigor,  as  he  does,  but  I  have  always  admired  him.  The  NIJ 
was  created  to  be  independent  from  political  influence,  to  be  an 
independent  research  arm  of  both  the  Justice  Department  and 
State  and  local  law  enforcement  entities.  Would  you  ever  be  in  a 
position  to  edit  or  not  publish  a  report  that  would  be  critical  of  this 
administration,  or  this  Justice  Department? 

Mr.  Travis.  Senator,  in  preparing  for  this  hearing  and  in  learn- 
ing about  the  National  Institute  of  Justice,  I  have  been  impressed 
by  the  care  and  attention  that  the  Congress  has  paid  to  establish- 
ing an  independent  entity  to  carry  out  the  mission  of  answering  the 
question  what  works  in  the  field  of  criminal  justice  reform  and  in- 
novation. As  Jan  Chaiken  mentioned  in  his  statement,  the  fact  that 
the  directors  of  our  two  agencies,  and  in  particular  our  separate 
Presidential  appointments  subject  to  confirmation  by  the  Senate, 
sends  a  very  important  message  to  us  and  I  think  to  the  larger 
public  that  our  work  is  to  be  viewed  as  objective  and  as  non- 
partisan and  as  independent.  Nowhere  is  this  more  important  than 
in  the  publication  of  research  findings.  I  am  personally  committed 
through  my  career  at  the  Vera  Institute  of  Justice  and  as  an  offi- 
cial of  local  law  enforcement  and  criminal  justice  to  letting  the 
truth  come  out.  These  are  very  important  issues  that  we  are  wres- 
tling with  as  a  society,  and  it  is  important  that  the  public  and  the 
practitioners  know  the  answers  to  the  question  what  works.  NIJ 
has  a  unique  role  to  play  in  that,  and  I  am  committed  to  protecting 
the  independence  of  the  research  product  and  the  integrity  of  the 
agency. 

Senator  Simpson.  How  would  you  respond  if  a  political  appointee 
in  the  Justice  Department  requested  that  you  edit  or  not  publish 
a  report  that  is  critical  of  this  administration,  or  this  Justice  De- 
partment? 

Mr.  Travis.  Well,  I  would  begin  by  talking  about  the  importance 
of  the  question  that  is  being  asked  and  answered  in  the  report,  and 
the  importance  of  having  research  findings  that  are  credible  and 
that  are  respected  by  the  public  and  talk  about  the  unique  mission 
that  has  been  given  to  the  National  Institute  of  Justice  by  Con- 
gress to  be  independent  and  to  produce  and  publish  independent 
findings.  Ultimately,  I  think  the  larger  objective  is  for  the  Amer- 
ican people  to  be  guided  by  research  findings  in  developing  crime 
control  policy.  So  I  would  make  a  very  strong  statement  about  the 
value  of  the  research,  the  value  of  the  independent  findings,  and 


393 

the  importance  of  disseminating  the  information  to  the  public  at 
large. 

Senator  Simpson.  I  understand  that,  but  would  you  not  just  tell 
them  to  get  out? 

Mr.  Travis.  I  think  we  have  to  first  attempt  to  persuade  and 
then  ultimately  the  answer  is  that  the  research  has  to  be  pub- 
lished. I  think  that  is  the  ultimate  answer. 

Senator  Simpson.  Well,  I  think  that  is  the  first  answer,  I  respect- 
fully say. 

Mr.  Travis.  Right. 

Senator  Simpson.  The  others  are,  I  think,  things  that  get  people 
in  trouble  in  Washington.  The  first  answer  is  I  did  that  work. 

Mr.  Travis.  Right. 

Senator  Simpson.  It  is  credible  work,  and  you  are  not  going  to 
do  that  to  me. 

Mr.  Travis.  Right. 

Senator  Simpson.  That  is  me.  That  is  my  name  on  there.  You 
cannot  do  it. 

Mr.  Travis.  Right. 

Senator  Simpson.  So  I  think  that  is  very  important  because  I 
have  seen  enough,  and  so  have  you,  as  to  what  happens  in  this 
community  with  equivocation,  and  it  does  not  matter  what  admin- 
istration. Just  step  up  to  the  plate.  There  is  a  great  deal  more  re- 
spect for  people  who  do  that,  even  if  they  are  wrong,  at  least  with 
energy  and  a  sense  of  the  Tightness  of  things,  and  you  will  find  this 
happening.  This  will  happen  to  you,  and  I  think  at  that  time  you 
just  say,  hell,  no.  That  would  be  a  good  response  and  get  you  a  lot 
further  in  Washington  when  somebody  is  trying  to  do  that  in  some 
way. 

But  I  just  have  one  final  question.  You  have  been  deeply  involved 
in  community  policing  efforts  and  have  an  extraordinary  record  in 
that.  That  is  the  thing  we  are  talking  about  now  in  the  crime  bill. 
How  does  community  policing,  which  gets  criticism  from  some 
sources,  how  does  that  really  differ  from  traditional  policing?  How 
is  it  better,  and  do  you  see  a  role  for  the  NIJ  in  advancing  commu- 
nity policing  efforts? 

Mr.  Travis.  Senator,  I  have  been  involved,  am  fortunate  to  have 
been  involved  in  the  past  10  years  in  the  New  York  City  police  de- 
partment and  New  York  City  government  as  we  have  been  strug- 
gling to  adopt  a  community  policing  philosophy  within  our  depart- 
ment. Other  agencies  throughout  the  country  have  been  doing  the 
same.  Chicago,  in  fact,  is  another  police  department  that  is  under- 
going the  same  transformation.  I  think  that  community  policing 
holds  great  promise  for  this  country  as  a  smarter  way  and  a  more 
effective  way  to  deliver  police  services. 

The  ultimate  test  will  be  in  part  in  the  ability  of  police  agencies 
to  reduce  crime.  I  think  a  quick  definition,  and  pages  and  pages 
have  been  written  on  the  topic,  but  a  quick  definition  that  I  find 
helpful  is  to  think  of  community  policing  as  the  police  and  commu- 
nity working  together  to  jointly  identify  problems  of  crime  and  dis- 
order, jointly  develop  strategies  to  address  those  problems,  and 
jointly  assess  the  effectiveness  of  those  strategies.  So  it  is  different 
from  traditional  policing  in  that  the  police  are  working  in  close 
partnership  with  the  community,  less  in  a  reactive  mode,  more  in 


394 

a  partnership  and  proactive  and  ultimately  problem-solving  mode 
to  identify  and  solve  problems. 

Let  me  give  you  one  just  quick  example  from  my  personal  experi- 
ence in  New  York  City  that  I  think  makes  the  point.  There  is  a 
building,  a  large  building  on  West  165th  Street  in  northern  Man- 
hattan that  has  about  200  units.  It  has  been  plagued  by  a  drug 
problem  in  about  10  or  15  percent  of  the  apartments  in  that  build- 
ing. A  traditional  police  response  would  involve  making  arrests, 
getting  search  warrants  and  prosecuting  those  cases.  Under  a  com- 
munity policing  philosophy  we  sat  down  with  the  residents  of  that 
building,  developed  more  intelligence  about  what  was  happening 
there,  and  ultimately  developed  a  case  to  federally  forfeit  the  build- 
ing in  court  working  with  the  U.S.  Attorney's  Office  and  put  the 
entire  building  in  receivership,  in  essence,  with  the  U.S.  Marshal 
Service,  and  put  in  place  a  more  effective  management  company 
that  was  able  to  reduce  the  level  of  crime  and  disorder  within  that 
building.  That  is  a  problem-solving,  results-oriented  approach  that 
I  think  lies  at  the  core  of  community  policing. 

Senator  Simpson.  Thank  you  very  much.  Appreciate  that.  Thank 
you,  Madam  Chairwoman. 

QUESTIONING  BY  SENATOR  MOSELEY-BRAUN 

Senator  Moseley-Braun.  Thank  you,  Senator  Simpson.  Senator 
Simpson  actually  has  asked  a  couple  of  the  questions  that  I  wanted 
to  raise  with  you,  but  I  wanted  to  ask  you  in  particular  with  regard 
to  the  pending  crime  bill,  I  think  one  of  the  reasons  why  it  has 
been  such  a  difficult  task  to  get  consensus  around  here  around  the 
crime  bill  is  that  it  really  does  reflect  kind  of  a  watershed  develop- 
ment, in  my  opinion,  in  recognizing  the  value  of  prevention  as 
much  as  punishment  in  the  administration  of  the  criminal  justice 
system.  This  is  the  first  time  we  have  had  both  of  these  approaches 
in  a  single  piece  of  legislation.  Some  say  that  that  is  the  problem 
with  the  legislation.  There  are  others  who  I  think  see  some  real 
value  in  moving  in  that  direction. 

But  my  question  to  you  has  to  do  with  the  analyses  that  are  out 
there  regarding  the  value  of  prevention  services  versus  again  the 
traditional  incarceration,  lock  them  up,  throw  away  the  key  kind 
of  approaches.  I  mean  it  does  not,  it  seems  to  me,  take  a  rocket  sci- 
entist to  figure  out  that  if  you  spend  $3,000  on  a  kid  at  midnight 
basketball  then  you  might  possibly  save  $30,000  for  that  same  kid 
incarcerated  for  incarceration  expenses,  not  to  mention  the  costs 
associated  with  victimization  to  get  there.  Yet  there  is  precious  lit- 
tle work  in  regards  to  the  economic  impacts  of  our  spending  in 
criminal  justice.  That  is  to  say  where  we  can  spend  money  to  get 
the  better  bang  for  the  buck,  where  it  makes  sense  to  economize, 
where  it  makes  sense  to  direct  dollars  based  on  empirical  data  in 
terms  of  research,  and  my  question  to  you  would  be  do  you  see 
value  in  promoting  that  kind  of  work,  promoting  that  kind  of  re- 
search and  sharing  information  such  as  may  come  out  of  it  with 
the  Congress? 

Mr.  Travis.  Absolutely.  One  of  the  program  goals  of  the  National 
Institute  of  Justice  in  addition  to  examining  violent  crime  and  ex- 
amining drug-related  crime  and  disseminating  information  and 
technology,  one  of  the  specific  program  goals  is  to  look  at  crime  pre- 


395 

vention  and  to  conduct  research  in  this  area.  So  I  think  the  at- 
tempt in  the  crime  bill  to  balance  prevention  with  some  of  the  more 
traditional  law  enforcement  approaches  is  a  commendable  one,  and 
within  the  research  agenda  of  the  National  Institute  of  Justice, 
crime  prevention  and  the  role  of  communities  in  reducing  levels  of 
crime  and  disorder  is  a  recognized  objective. 

If  confirmed,  this  is  an  area  that  I  am  particularly  interested  in, 
in  placing  a  priority  on,  learning  more,  disseminating  more  infor- 
mation  about  prevention  programs  that  are  effective. 

Senator  Moseley-Braun.  Thank  you.  Thank  you  very  much,  and 
I  very  much  appreciate  that  approach  because  I  think  that  is  kind 
of  the  new  frontier  that  we  need  to  move  into.  Senator  Brown  was 
just  here.  Is  he  not  going  to  ask  questions? 

Senator  Simpson.  I  think  he  went  to  the  other  meetings.  He 
came  here  instead  of  the  other  meeting.  [Laughter.] 

Senator  Moseley-Braun.  OK. 

Senator  Simpson.  Judiciary  is  meeting  in  three  locations  today. 

Senator  Moseley-Braun.  Oh,  are  we.  I  did  not  realize  that. 

Senator  Simpson.  Three  different  subcommittees.  Thank  you. 

Senator  Moseley-Braun.  All  right.  Well,  thank  you  very  much, 
and  I  have  no  further  questions  of  Mr.  Travis. 

Senator  Simpson.  Nor  do  I. 

Senator  Moseley-Braun.  To  all  the  nominees  and  the  families, 
again,  thank  you  very  much  for  your  endurance,  and  we  very  much 
look  forward  to  having  a  speedy  resolution  of  this  issue.  Obviously, 
the  record  will  remain  open.  Should  Senators,  members  of  the  Judi- 
ciary Committee  or  otherwise,  have  questions,  they  will  put  those 
questions  in  writing,  but  we  hope  to  move  to  a  vote  and  to  finalize 
this  matter  as  quickly  as  the  process  will  allow.  So,  again,  thank 
you  very  much,  Mr.  Travis. 

Senator  Simpson.  Thank  you,  Madam  Chairwoman. 

Senator  Moseley-Braun.  Thank  you,  all.  The  hearing  is  ad- 
journed. 

[Whereupon,  at  11:25  a.m.,  the  committee  adjourned.] 

[Submissions  for  the  record  follow:] 


396 

SUBMISSIONS  FOR  THE  RECORD 


I.   BIOGRAPHICAL  INFORMATION  (PUBLIC) 

1.  Full  name  (include  any  former  names  used.) 

Laurel  (Laurie)  Overby  Robinson 

2.  Address:  List  current  place  of  residence  and  office 
address (es) . 

Home:     5250  Watson  St.,  N.W. 

Washington,  D.C.   20016 

Office:   U.S.  Department  of  Justice 

Office  of  the  Deputy  Attorney  General 
10th  &  Constitution  Ave.,  N.W.  -  Room  4222 
Washington,  D.C.   20530 

3.  Date  and  Place  of  Birth. 

July  7,  1946  -  Washington,  D.C. 

4.  Marital  Status  (include  maiden  name  of  wife,  or  husband's 
name).   List  spouse's  occupation,  employer's  name  and 
business  address (es). 

Married  to  Sheldon  Krantz  -  Lawyer 
Partner  with  the  law  firm  of 
Piper  &  Marbury  (1200  -  19th  St.,  N.W. ,  Washington, 

D.C.  20036). 
He  also  teaches  as  an  Adjunct  Law  Professor  at 

American  University's  Washington  College  of  Law 

in  Washington,  D.C. 

5.  Education:  List  each  college  and  law  school  you  have 
attended,  including  dates  of  attendance,  degrees  received, 
and  dates  degrees  were  granted. 

College:   B.A.  from  Brown  University,  Providence,  RI . 

Attended  1964-68.   Graduated  6/3/68.   Magna  Cum  Laude. 

6.  Employment  Record:  List  (by  year)  all  business  or 
professional  corporations,  companies,  firms,  or  other  enter- 
prises, partnerships,  institutions,  and  organizations,  non- 
profit or  otherwise,  including  firms,  with  which  you  were 
connected  as  an  officer,  director,  partner,  proprietor,  or 
employee  since  graduation  from  college. 

A.   August  23,  1993  to  Present  - 

Associate  Deputy  Attorney  General,  and  Acting  Assistant 
Attorney  General  for  the  Office  of  Justice  Programs  in 
the  U.S.  Department  of  Justice. 


397 


-2- 

B.  1979  to  August,  1993  - 

Served  as  Director  of  the  American  Bar  Association's 
Section  of  Criminal  Justice  (in  Washington,  D.C.  office) . 
From  1986  to  August,  1993,  I  also  simultaneously  headed 
the  80-person  Professional  Services  Division  in  D.C. 
(constituting  roughly  half  the  ABA's  Washington  Office). 

C.  1972  -  1979  - 

Served  as  Assistant  Staff  Director  (1975  to  1979) 
and  Executive  Assistant  for  Standards  Implementation 
(1972  to  1975)  for  the  American  Bar  Association's  Section 
of  Criminal  Justice  (in  Washington,  D.C.  office). 

D.  1972  - 

Worked  for  several  months  for  Potomac  Temporaries 

(Arlington,  VA)  to  earn  money  between  jobs 

when  I  moved  from  New  York  City  back  to  Washington,  DC. 

E.  1968  -  1971  - 

Served  as  a  reporter  and  desk  editor  for  a  New  York 
City,  Ford  Foundation-funded  project  to  set  up  a  wire 
service  to  provide  better  news  coverage  for  the  City's 
black  and  Puerto  Rican  communities  (Community  News 
Service) . 

7.  Military  Service;  Have  you  had  any  military  service?   If  so, 
give  particulars,  including  the  dates,  branch  of  service, 
rank  or  rate,  serial  number  and  type  of  discharge  received. 

None. 

8.  Honors  and  Awards;  List  any  scholarships,  fellowships, 
honorary  degrees,  and  honorary  society  memberships  that  you 
believe  would  be  of  interest  to  the  Committee. 

One  of  very  limited  number  of  recipients  (September,  1992) 
ABA  Bonus  for  excellence  as  an  Association  employee. 

Phi  Beta  Kappa. 

Magna  Cum  Laude  graduate  from  Brown  University. 

In  high  school  -  Valedictorian;  recipient  of 

Virginia  Statewide  Latin  championship;  recipient 
of  Daughters  of  the  American  Revolution  (DAR) 
award  for  excellence  in  American  History. 

9.  Bar  Associations;  List  all  bar  associations,  legal  or 
judicial-related  committees  or  conferences  of  which  you  are 
or  have  been  a  member  and  give  the  titles  and  dates  of.  any 
offices  which  you  have  held  in  such  groups. 


398 

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I  have  been  involved  in  the  following: 

American  Bar  Association  Bar  Executive  Associate  and 

Criminal  Justice  Associate   (1973  to  present) 
Institute  of  Judicial  Administration  member  (1980 

to  1991) 
Advisory  Board,  Federal  Sentencing  Reporter  (1990 

to  present) 
National  Committee  on  Community  Corrections  (1990  to 

August  1993) 
Chair,  National  Forum  on  Criminal  Justice  (1991  to 

August,  1993) 
Board  of  Regents,  National  College  of  District  Attorneys 

(1979  to  August  1993)  (Ex  officio  member) 
Board  of  Regents,  National  College  for  Criminal  Defense 

(1979  to  1984)  (Ex  officio  member) 
American  Bar  Association  representative  to  the  National 

Coalition  for  Jail  Reform  (1979  to  1984) 
Board  of  Directors,  National  Association  of  Women  in 

Criminal  Justice  (1975  to  1983) 
Board  of  the  ACLU  National  Prison  Project  (1986  to 

August  1993) . 
Board  of  Directors,  VALOR  (Victim  Assistance  Legal 

Organization)  (1981  to  1991) . 
Served  as  working  member  of  ABA  Criminal  Justice  Section 

Committees  on 

-  Drugs  and  the  Criminal  Justice  System 

(1990-1992) 

-  "State  of  Criminal  Justice"  Annual  Report 

(1991-1993) 

10.  Other  Memberships;   List  all  organizations  to  which  you 
belong  that  are  active  in  lobbying  before  public  bodies. 
Please  list  all  other  organizations  to  which  you  belong. 

Those  involved  in  lobbying; 

Common  Cause  (1990  to  present). 

American  Bar  Association  (Criminal  Justice  Associate) 

(1973  to  present) . 
Other: 
Palisades  Neighborhood  Association  (1992  to  present) . 

11.  Court  Admission:   List  all  courts  in  which  you  have  been 
admitted  to  practice,  with  dates  of  admission  and  lapses 
if  any  such  memberships  lapsed.   Please  explain  the  reason 
for  any  lapse  of  membership.   Give  the  same  information  for 
administrative  bodies  which  require  special  admission  to 
practice. 

None. 


399 


-4- 

12.   Published  Writings;   List  the  titles,  publishers,  and  dates 
of  books,  articles,  reports  or  other  published  material  you 
have  written  or  edited.   Please  supply  one  copy  of  all 
published  material  not  readily  available  to  the  Committee. 
Also,  please  supply  a  copy  of  all  speeches  by  you  on  issues 
involving  constitutional  law  or  legal  policy.   If  there 
were  press  reports  about  the  speech,  and  they  are  readily 
available  to  you,  please  supply  them. 

*  "Moving  the  Criminal  Justice  Machine,"  State  Government. 
Vol.  XLVI,  No.  4  (August,  1973). 

*  "ABA  Criminal  Justice  Standards  Winning  Nationwide 
Acceptance,"  Criminal  Defense,  Vol.  1,  No.  1  (Dec,  1973). 

*  "Throwing  the  Books  at  Criminal  Lawyers  -  The  ABA 
Standards  for  Criminal  Justice  -  What  They  Mean  to  Law  Students," 
Student  Lawyer,  2/75. 

*  "The  ABA  Standards  for  Criminal  Justice:  What  They  Mean  to 
the  Criminal  Defense  Lawyer,"  Journal  of  Criminal  Defense.  Vol. 

1,  No.  1  (Spring,  1975) . 

*  "Women  in  the  Criminal  Justice  System,"  Criminal  Defense, 
Vol.  3,  No.  3  (May,  1976). 

*  "Our  Grand  Jury  System  Cries  for  Reform,  Not  Discard,"  San 
Diego  Union.  10/2/77,  co-authored  with  Richard  E.  Gerstein. 

*  "Making  the  Grand  Jury  Fair,"  Litigation  Magazine,  Vol.  4, 
No.  4  (1978) ,  co-authored  with  Richard  E.  Gerstein. 

*  "Remedy  for  the  Grand  Jury:  Retain  But  Reform,"  ABA 
Journal,  March,  1978  (co-authored  with  Richard  E.  Gerstein). 

*  "Time  to  Act  on  Grand  Jury  Reforms,"  National  Law  Journal, 
Feb.  4,  1980  (co-authored  with  Richard  E.  Gerstein). 

*  "Exclusionary  Rule  Changes  Set,"  The  National  Law  Journal. 
August  10,  1981. 

*  "A  Year  of  Crucial  Change  in  the  Law,"  The  National  Law 
Journal."  August  6,  1984. 

*  "Criminal  Bar  Feels  Impact  of  New  Act,"  The  National  Law 
Journal.  July  8,  1985. 

*  "Prison  Policy,"  Federal  Sentencing  Reporter,  Vol.  6,  No. 
4,  January/ February  1993. 


Section) 

in 

Vol. 

1, 

No. 

1 

Vol. 

1, 

No. 

2 

Vol. 

1, 

No. 

3 

Vol. 

1, 

No. 

4 

Vol. 

2, 

No. 

2 

Vol. 

2, 

No. 

3 

Vol. 

3, 

No. 

2 

400 


-5- 

*  "Federal  Legislative  Developments"  Column  in  Criminal 
Justice  Magazine  (quarterly  magazine  of  the  ABA  Criminal  Justice 


(co-authored  with  Tom  C.  Smith) 
(co-authored  with  Tom  C.  Smith) 


*  "Section  News"  Column  in  Criminal  Justice  Magazine  in 

Vol.  3,  No.  3 
Vol.  6,  No.  4. 

*  "Report  to  Members"  Column,  co-authored  with  Sheldon 
Krantz,  in  Criminal  Justice  Magazine  in 

Vol.  4,  No.  4 
Vol.  5,  No.  1 
Vol.  5,  No.  2. 

*  I  also  wrote  numerous  articles  (non-bylined)  for  a  wire 
service,  the  Community  News  Service  (long  defunct) ,  in  New  York 
City  in  1970  and  1971.   I  do  not  have  copies  of  these  and  do  not 
know  how  these  would  be  obtained.   I  also  wrote  numerous  news 
articles  and  columns  in  college  for  the  Pembroke  Record  and  the 
Brown  Daily  Herald.   It  would  be  virtually  impossible,  without 
visiting  the  school  (in  Providence,  RI) ,  to  go  through  archives 
of  the  Herald  (the  Record  has  been  defunct  for  over  20  years) ,  to 
find  these  articles. 

SPEECHES: 

*  October  6,  1993  -  Keynote  address  at  Symposium  on  Drugs  and 
Community  Corrections  -  Chicago,  IL. 

*  October  27,  1993  -  Panelist  on  Federal  Criminal  Justice 
Priorities  -  10th  Annual  Governor's  Law  Enforcement  Forum  - 
Albany,  NY. 

*  November  4,  1993  -  Bureau  of  Justice  Assistance  Annual 
Conference  -  Plenary  Session  -  Panel  on  Drugs  And  Violence:  Cross 
Agency  Perspectives  on  Federal  Assistance  to  State  and  Local 
Governments  -  Philadelphia,  PA. 

*  November  12,  1993  -  Keynote  Address  -  National  Association  for 
Court  Management  -  Baltimore,  MD. 

*  January  7,  1994  -  Presentation  -  National  Conference  of  State 
Legislators  -  Judiciary  Chairs  Seminar  -  Denver,  CO. 


401 


-6- 

*  January  20,  1994  -  Presentation  before  Conference  of  U.S. 
Attorneys  -  Washington,  D.C. 

*  February  9,  1994  -  Introductory  remarks  before  National 
Conference  on  Criminal  History  Records:  Brady  &  Beyond  - 
Washington,  D.C. 

*  March  7,  1994  -  Presentation  before  a  conference  on  Domestic 
Violence  -  Los  Angeles,  CA. 

13.  Health;   What  is  the  present  state  of  your  health?   List 
the  date  of  your  last  physical  examination. 

My  health  is  excellent.   My  last  physical  examination  was  on 
January  22,  1993. 

14.  Public  Office;   State  (chronologically)  any  public  offices 
you  have  held,  other  than  judicial  offices,  including  the 
terms  of  service  and  whether  such  positions  were  elected 
or  appointed,   state  (chronologically)  any  unsuccessful 
candidacies  for  elective  public  office. 

None. 

15.  Legal  Career; 

a.  Describe  chronologically  your  law  practice  and 
experience  after  graduation  from  law  school, 
including: 

1.  whether  you  served  as  clerk  to  a  judge,  and, 
if  so,  the  name  of  the  judge,  the  court, 

and  the  dates  of  the  period  you  were  a  clerk; 

2.  whether  you  practiced  alone,  and,  if  so,  the 
addresses  and  dates; 

3.  the  dates,  names  and  addresses  of  law  firms  or 
offices,  companies  or  governmental  agencies  with 
which  you  have  been  connected,  and  the  nature  of 
your  connection  with  each; 

b.  1.   What  has  been  the  general  character  of  your 

law  practice,  dividing  it  into  periods  with  dates 
if  its  character  has  changed  over  the  years? 

2.   Describe  your  typical  former  clients,  and  mention 
the  areas,  if  any,  in  which  you  have  specialized. 

c.  l.   Did  you  appear  in  court  freguently,  occasionally, 

or  not  at  all?   If  the  freguency  of  your 
appearances  in  court  varied,  describe  each  such 
variance,  giving  dates. 


402 


-7- 

2.  What  percentage  of  these  appearances  was  in: 

(a)  federal  courts; 

(b)  state  courts  of  record; 

(c)  other  courts. 

3.  What  percentage  of  your  litigation  was: 

(a)  civil; 

(b)  criminal. 

4.  State  the  number  of  cases  in  courts  of  record 
you  tried  to  verdict  or  judgment  (rather  than 
settled) ,  indicating  whether  you  were  sole 
counsel,  chief  counsel  or  associate  counsel. 

5.  What  percentage  of  these  trials  was: 

(a)  jury; 

(b)  non-jury. 

I  am  not  a  lawyer;  therefore,  this  question  is  not  applicable. 

16.   Litigation:   Describe  the  ten  most  significant  litigated 

matters  which  you  personally  handled.   Give  the  citations, 
if  the  cases  were  reported,  and  the  docket  number  and  date 
if  unreported.   Give  a  capsule  summary  of  the  substance  of 
each  case.   Identify  the  party  or  parties  whom  you 
represented;  describe  in  detail  the  nature  of  your 
participation  in  the  litigation  and  the  final  disposition 
of  the  case.   Also  state  as  to  each  case: 

(a)  the  date  of  representation; 

(b)  the  name  of  the  court  and  the  name  of  the 

judge  or  judges  before  whom  the  case  was 
litigated;  and 

(c)  The  individual  name,  addresses  and  telephone 

numbers  of  co-counsel  and  of  principal  counsel 
for  each  of  the  other  parties. 

I  am  not  a  member  of  the  bar.   The  following  are  persons  with 
whom  I  have  worked  who  know  me  and  my  qualifications: 

Judge  Patricia  Wald 

U.S.  Court  of  Appeals  for  the 

District  of  Columbia 
Third  &  Constitution  Ave.,  N.W. 
Washington,  D.C.   20001 
202/273-0632 


403 


-8- 


Newman  Flanegin 

Executive  Director 

National  District  Attorneys  Association 

1033  North  Fairfax  St. 

Alexandria,  VA  22314 

703/549-9222 

E.  Michael  McCann 

District  Attorney  for  Milwaukee  County 

821  West  State  Street 

Milwaukee,  WI   53233 

414/278-4653 

Judge  Stephen  Breyer 

Chief  Judge,  First  Circuit  Court  of  Appeals 

Mccormick  Post  Office  &  Courthouse 

Boston,  MA   02109 

617/223-9014 

Professor  Sam  Dash 

Georgetown  University  Law  Center 

600  New  Jersey  Ave.,  N.W. 

Washington,  DC   20001 

202/662-9070 

Robbie  Callaway 

Assistant  National  Director,  Boys  &  Girls  Clubs 

of  America 
611  Rockville  Pike  -  Suite  230 
Rockville,  MD   20852 
301/251-6676 

Scott  Harshbarger 

Attorney  General  of  the  Commonwealth  of  Massachusetts 

One  Ashburton  Place 

Boston,  MA   02108 

617/727-2200 

Chief  Justice  James  G.  Exum,  Jr. 
Supreme  Court  of  North  Carolina 
P.O.  Box  1841 
Raleigh,  NC   27602 
919/733-3715 

Dean  Leo  Romero 

University  of  New  Mexico  Law  School 

1719  Stanford  NE 

Albuquerque,  NM   87131 

505/277-3017 


404 


-9- 

John  J.  Curt in,  Jr. 

Former  President,  American  Bar  Association 

150  Federal  St. 

Boston,  MA  02110 

617/951-8325 

Justice  William  H.  Erickson 
Colorado  Supreme  Court 
2  E.  14th  Ave.  -  Room  465 
Denver,  CO   80203 
303/837-3747 

Marlene  Young 

Executive  Director 

National  Organization  for  Victim  Assistance 

1757  Park  Road,  N.W. 

Washington,  DC  20010 

202/232-6682 

Chuck  Wexler,  Executive  Director 
Police  Executive  Research  Forum  (PERF) 
2300  M  St. ,  N.W. 
Washington,  DC   20037 
202/466-7820 

Professor  Alfred  Blumstein 
School  of  Urban  &  Public  Affairs 
Carnegie-Mellon  University 
Hamburg  Hall,  Room  1104 
5000  Forbes  Ave. 
Pittsburgh,  PA   15213 
412/578-2175 

Richard  H.  Kuh 
Attorney  at  Law 
555  Fifth  Avenue 
New  York,  NY  10017 
212/984-7830 

Randolph  N.  Stone 

University  of  Chicago  Law  School 

6020  S.  University  Ave. 

Chicago,  IL  60637 

312/702-9611 

17.   Legal  Activities:   Describe  the  most  significant  legal 

activities  you  have  pursued,  including  significant  litiga- 
tion which  did  not  progress  to  trial  or  legal  matters  that 
did  not  involve  litigation.   Describe  the  nature  of  your 
participation  in  this  question;  please  omit  any  information 
protected  by  the  attorney-client  privilege  (unless  the 
privilege  has  been  waived) . 


405 


-10- 

During  my  21  years  with  the  American  Bar  Association,  I  was 
involved  in  a  host  of  criminal  justice  policy  issues  ranging  from 
work  on  crime  victims  to  projects  and  committees  dealing  with 
grand  jury  issues,  the  federal  sentencing  guidelines,  white 
collar  crime,  women  offenders,  the  search  warrant  process, 
prisons  and  jails,  criminal  justice  data,  the  Uniform  Rules  of 
Criminal  Procedure,  RICO,  the  ABA  Criminal  Justice  Standards, 
drugs  and  the  criminal  justice  system,  the  federal  criminal  code, 
indigent  defense,  the  prosecution  and\defense  function,  and 
juvenile  justice.   These  projects  entailed  preparation  of 
research,  policy  development,  and,  in  many  cases,  development  of 
special  projects  for  the  ABA  supported  by  Association  revenues  or 
outside  funding  which  we  obtained  from  foundation,  corporate  or 
government  grants. 

During  this  time,  I  played  a  key  role  in  such  areas  as: 

*  working  on  the  ABA's  National  Project  to  Implement 

the  ABA  Standards  for  Criminal  Justice  (1972-77) ; 

*  heading  a  project  on  the  Uniform  Rules  of  Criminal 

Procedure  (1974-75) ; 

*  starting  an  ABA  Project  on  Women  Offenders  (1975) ; 

*  initiating  new  ABA  Criminal  Justice  Section  Committees 

in  such  areas  as  Women  in  Criminal  Justice  (1975)  ; 
the  Indigent  Defense  Crisis  (1992)  ;  Drugs  and 
the  Criminal  Justice  System  (1989) ;  and  "State  of 
Criminal  Justice"  Annual  Report  (1991) ; 

*  launching  the  ABA's  Juvenile  Justice  Center  (1980) ; 

*  launching  a  special  project  on  the  search  warrant 

process  (1986)  ; 

*  starting  the  ABA  Special  Committee  on  Crime  in  a  Free 

Society,  chaired  by  Sam  Dash,  which  produced  the 
report,  Criminal  Justice  in  Crisis  (1986  to  1988)  ; 

*  expanding  the  ABA's  White  Collar  Crime  Committee  during 

the  1980 's  from  3  0  members  to  over  600. 

In  my  work  at  the  ABA  as  Director  of  the  Professional  Services 
Division-D.C. ,  I  was  involved  in 

*  helping  to  launch  the  CEELI  Project  (Central  &  Eastern 

European  Law  Initiative)  (1990) ; 

*  helping  to  create  the  ABA's  Commission  on  Homelessness 

&  Poverty  (1992)  ; 

*  overseeing  the  work  of  the  ABA's  Center  on  Children  & 

the  Law  (1986-1993)  ; 

*  supervising  the  staff  of  the  ABA  Sections  of  Taxation, 

Individual  Rights  &  Responsibilities,  and 
International  Law  &  Practice  (1986-1993). 

During  my  tenure  with  the  American  Bar  Association,  particularly 
in  my  capacity  as  Director  of  the  ABA's  Professional  Services 
Division-D.C.  I  had  extensive  management,  personnel  and  budget 


406 


-Ir- 
responsibilities.  These  included: 

*  responsibility  for  oversight  of  some  80  staff  members, 
constituting  more  than  half  of  the  ABA's  Washington 
Office; 

*  responsibility  for  management,  budget  and  personnel 
oversight  for  four  ABA  sections  (Taxation,  Individual 
Rights  &  Responsibilities,  Criminal  Justice  and 
International  Law) ;  the  Standing  Committee  on  Law  & 
National  Security;  the  Center  on  Children  &  the  Law; 
the  Commission  on  Homelessness  and  Poverty,  and  the 
Central  &  Eastern  European  Law  Initiative  (CEELI) ; 

*  overseeing  an  annual  budget  of  some  $5  million; 

*  serving  on  the  management  team  which  ran  the  ABA 
Washington  Office; 

*  undertaking  broad  management-related  responsibilities  for 
the  American  Bar  Association,  including: 

— Co-Chairing  an  ABA  Working  Group  on  Implementation  of 
the  ABA's  Goal  9  (Involvement  of  Women  &  Minorities 
in  the  Legal  Profession) (1987-89) ; 

— Serving  on  ABA  Management  Committees  on  subjects 
ranging  from  Restructuring  the  ABA  Staff,  Incentive 
Pay  Programs,  Cost  Allocation,  Travel,  and  Non-Dues 
Revenues  to  ABA  Issues  Management  and  Personnel 
Appraisal  Systems. 


407 


II.   FINANCIAL  DATA  AND  CONFLICT  OF  INTEREST  (PUBLIC) 

List  sources,  amounts  and  dates  of  all  anticipated  receipts 
from  deferred  income  arrangements/  stock,  options, 
uncompleted  contracts  and  other  future  benefits  which 
you  expect  to  derive  from  previous  business  relationships, 
professional  services,  firm  memberships,  former  employers, 
clients  or  customers.   Please  describe  the  arrangements 
you  have  made  to  be  compensated  in  the  future  for  any 
financial  or  business  interest. 

I  do  still  have  funds  ($112,799)  in  a  401 (k)  Thrift  Plan  through 
the  American  Bar  Association,  where  I  worked  for  21  years.   The 
ABA  ceased  making  contributions  to  this  account  when  I  left  the 
employment  of  the  Association  in  August,  1993.   As  other  former 
ABA  employees  have  done,  I  anticipate  leaving  these  funds  in  the 
401 (k)  until  I  retire. 

2 .   Explain  how  you  will  resolve  any  potential  conflict  of 
interest,  including  the  procedure  you  will  follow  in 
determining  these  areas  of  conflict.   Identify  the  categories 
of  litigation  and  financial  arrangements  that  are  likely 
to  present  potential  conflicts-of-interest  during  your 
initial  service  in  the  position  to  which  you  have  been 
nominated. 

Because  the  Office  of  Justice  Programs  is  a  grant -making  agency, 
potential  conflicts-of-interest  will  arise  with  respect  to 
applications  to  OJP  from  the  American  Bar  Association  or  other 
groups  with  whom  I  have  been  officially  affiliated  (the  National 
College  of  District  Attorneys,  the  National  Committee  on 
Community  Corrections,  or  other  groups  listed  in  response  to 
question  1-9  of  this  questionnaire) .   I  would  anticipate  handling 
future  potential  conflicts-of-interest  as  I  have  handled  the 
situation  during  the  period  when  I  have  been  serving  as  Acting 
Assistant  Attorney  General  for  OJP  (August  23,  1993  to  present). 
After  consultation  with  the  Ethics  Officer  at  OJP  and  Ethics 
officials  at  Main  Justice,  I  instructed  the  OJP  Bureau  Heads  and 
Office  Heads  in  writing  that  I  should  not  be  present  for  any 
matters  involving  funding  requests  by  the  American  Bar 
Association,  and  delegated  to  a  senior  official  in  my  office  the 
authority  to  act  on  funding-related  matters  from  the  ABA  in  the 
event  that  involvement  or  action  by  the  Office  of  the  Assistant 
Attorney  General  was  required.   In  addition,  when  I  have  been 
approached  verbally  by  anyone  from  one  of  these  organizations  to 
discuss  funding  (e.g.,  from  the  ABA-sponsored  National  Judicial 
College) ,  I  have  immediately  brought  the  conversation  to  a  halt, 
explained  that  I  have  a  conflict,  and  told  them  they  need  to 
pursue  any  discussions  with  others  in  the  agency. 


408 


3.  Do  you  have  any  plans,  commitments  or  agreements  to  pursue 
outside  employment,  with  or  without  compensation,  during 
your  service  in  the  position  to  which  you  have  been 
nominated?   If  so,  explain. 

No. 

4.  List  sources  and  amounts  of  all  income  received  during  the 
calendar  year  preceding  your  nomination  and  for  the  current 
calendar  year,  including  all  salaries,  fees,  dividends, 
interest,  gifts,  rents,  royalties,  patents,  honoraria  and 
other  items  exceeding  $500  or  more  (if  you  prefer  to  do 

so,  copies  of  the  financial  disclosure  report,  required 

by  the  Ethics  in  Government  Act  of  1978,  may  be  substituted 

here . ) 

A  copy  of  the  financial  disclosure  report  required  by  the  Ethics 
in  Government  Act  of  1978  is  attached. 

5.  please  complete  the  attached  financial  net  worth  statement 
in  detail  (Add  schedules  as  called  for) . 

See  attached. 

6.  Have  you  ever  held  a  position  or  played  a  role  in  a  political 
campaign?   If  so,  please  identify  the  particulars  of  the 
campaign,  including  the  candidate,  dates  of  the  campaign, 
your  title  and  responsibilities. 

During  the  1992  Clinton/Gore  Campaign,  I  served  as  a  member  of 
the  criminal  justice  campaign  committee  (a  volunteer,  part-time 
position)  from  late  August,  1992  until  the  election  in  November. 
The  committee  met  for  several  hours  roughly  once  a  week  during 
this  period. 

During  the  1988  Dukakis  campaign,  I  also  served  as  a  member  of 
the  criminal  justice  campaign  committee.   This  was  also  a 
volunteer,  part-time  role.   We  met  for  several  hours  roughly 
every  week  from  early  September  through  the  November  election. 


409 


FINANCIAL  STATEMENT 
NET  WORTH 


LAURIE  Ro&fiJScu 


J 


Provide  a  complete,  current  financial  net  worth  statement  which  itemizes  in  detail  all  assets  (including  bank 
accounts,  real  estate,  securities,  trusts,  investments,  and  other  financial  holdings)  all  liabilities  (including  debts, 
mortgages,  loans,  and  other  financial  obligations)  of  yourself,  your  spouse,  and  other  immediate  members  of 
your  household. 


ASSETS 


Cj«h  on  hand  and  In  banks 
U.S.  Government  eeeuritles— add 
schedule 


W£m 


Uttto  securities — add  schedule 
Unlisted  securities— odd  schedule 
Accounts  and  noun  receivable: 

Due  from  relatives  and  friends 

Due  from  others 

Doubtful 
Real  initi  owned— add  schedule 
Raal  eetste  mortgegesxeceiveble 
Autos  and  other  personal  property 


J/8,gtru 


<nv   ao 


TSISS. 


MVTHruR  Pew  Vo/^T 


*/i>t,  cms* 


HvseANb  k(mflm<c*rr 


Total  atseti 


CONTINGENT  LIABILITIES 


Aa  endorser,  comaker  or  guarantor 
On  leases  or  contracts 

Legal  Claim j 

Frsarisior.  fer  fada— :  :ncc--ne  Tn 

Other  special  dabt 


£D 


aCrtCD  CD 


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UABIUTIES 


Notes  payabla  to  bsnfcs     secured 

Notaa  payabla  to  banks— unsecured 

Notn  payabla  to  relatives 

Not**  payabla  to  others 

Accounts  and  billa  dua 

Unpaid  incoma  tax 

Othar  unpaid  tai  and  Intamt 

Raal  attata  mortgages  payabla — add 

schedule 
Chattel  mortgages  and  othar  liens 

payable 
Other  debts— Itemizes 


5?,  croc 


Total  liabilities 

Mat  worth 

Total  liabilities  and  net  worth 


v^y,<rf7 


oo 


¥87, 1<?7  <T0 


GENERAL   INFORMATION 


Are  any  assets  pledged?  (Add  achad- 
ula.) 

Are  you  defendant  In  any  suits  or 
legal  •coons? 

Have  you  ever  taken  bankruptcy? 


mm. 


No 


NO 


N  o 


oo 


ob 


h{ovSe   AnP    PRo?V&Y    AT 
5z<ss    uot\Ts>crr^   5n  A/CO 

(  M  0IZTG*G~€     tfco    e  r 


410 


Attachment  to 

FINANCIAL  STATEMENT/NET  WORTH  -     Laurie  Robinson 


Unlisted  securities: 

Marvelous  Market  Bakery  (Bethesda,  MD) 

Listed  securities: 

Lake  Shore  Bancorp  Stock 

International  Dairy  Queen 

Toys  R  Us 

Templeton  Developing  Market  Trusts 

Va.  State  Housing  Development  Authority  Bonds 

Campbell  Soup 

Entergy  Corporation 

General  Public  Utility  Corporation 

Growth  Fund  of  America,  Inc. 

Colonial  Intermediate  High  Income  Fund 

Illinois  Power  Co. 

Merck  &  Co. 

Niagara  Mohawk  Power  Co. 

Nuveen  Municipal  Advantage  Fund,  Inc. 

Pacific  Gas  &  Electric 

Philadelphia  Electric 

Quaker  State  Corporation 

Chiquita  Bonds 

UJB  Financial  Corp. 


Real  Estate  Mortgage 

Mortgage  held  by  Prudential  Home  Mortgage  Co. 
P.O.  Box  4148,  Frederick  MD  21705-4148 
$424,997.00 

House  and  property  at  5250  Watson  St.,  N.W., 
Washington,  D.C.  20016 


411 


III.   GENERAL  (PUBLIC) 

1.  An  ethical  consideration  under  Canon  2  of  the  American  Bar 
Association's  Code  of  Professional  Responsibility  calls  for 
••every  lawyer,  regardless  of  professional  prominence  or 
professional  workload,  to  find  some  time  to  participate  in 
serving  the  disadvantaged. *•  Describe  what  you  have  done 

to  fulfill  these  responsibilities,  listing  specific 
instances  and  the  amount  of  time  devoted  to  each. 

Because  I  am  not  a  lawyer,  I  have  not  participated  in  provision 
of  pro  bono  legal  services  to  the  disadvantaged.   I  have, 
however,  attempted  to  make  a  contribution  in  this  area  through 
other  avenues,  including 

*  volunteering  to  spend  time  at  Martha's  Table  (a  non-profit 

organization  in  Washington,  D.C.)  helping  prepare 
meals  for  the  homeless.   This  is  a  program 
instituted  through  my  10-year-old  son's  school; 
he,  my  husband  and  I  all  participate. 

*  working  with  the  Orr  Elementary  School  in  Southeast 

Washington,  D.C.  This  is  an  all  black  school  in  a  very 

poor  and  crime-ridden  section  of  Anacostia. 

I  have  visited  the  school,  met  with  the  students, 

and  participated  in  the  program  to  collect 

Christmas  gifts  for  children  at  the  school. 

*  during  my  tenure  at  the  American  Bar  Association,  worked 

consistently  to  encourage  attention  to  needs  of  the 
disadvantaged,  through  such  efforts  as  helping  in  the 
establishment  of  the  ABA's  Commission  on  Homelessness 
&•  Poverty;  helping  create  the  ABA  Criminal  Justice 
Section's  Committee  on  the  Indigent  Defense  Funding 
Crisis;  establishing  the  ABA's  Committee  on  Crime 
Victims  in  the  late  1970 's;  and  participating  in  the 
launching  of  the  ABA's  Death  Penalty  Post-Conviction 
Representation  Project  in  the  mid-1980 's.   Because  of 
the  time  pressures  of  my  ABA  job,  these  "extra  efforts" 
required  substantial  after-hours  time  and  hundreds 
and  hundreds  of  hours  of  weekend  meetings. 

2.  Do  you  currently  belong,  or  have  you  belonged,  to  any 
organization  which  discriminates  on  the  basis  of  race, 
sex,  or  religion  -  through  either  formal  membership 
requirements  or  the  practical  implementation  of  membership 
policies?   If  so,  list,  with  dates  of  membership.   What 
you  have  done  to  try  to  change  these  policies? 

No. 


412 


LAURIE  O.  ROBINSON 


Laurie  O.  Robinson  joined  the  U.S.  Department  of  Justice  in 
August,  1993  as  an  Associate  Deputy  Attorney  General.   She  also 
serves  as  Acting  Assistant  Attorney  General  of  the  Department  of 
Justice's  Office  of  Justice  Programs. 

Prior  to  joining  the  Justice  Department,  Ms.  Robinson  served  as 
Director  of  the  American  Bar  Association's  (ABA)  Criminal  Justice 
Section  since  1979.   In  that  position,  she  was  responsible  for 
special  projects,  policy  development,  and  liaison  with  other 
criminal  justice  and  public  interest  organizations  in  furthering 
the  policy  goals  of  the  ABA.   From  1986  to  1993,  Ms.  Robinson 
also  headed  the  ABA' s  Professional  Services  Division-D.C. ,  with 
management  responsibility  for  the  Taxation,  International  Law, 
Criminal  Justice,  and  Individual  Rights  Sections;  the  Center  on 
Children  and  the  Law;  the  Standing  Committee  on  National 
Security;  the  Central  and  East  European  Law  Initiative  (CEELI); 
and  the  Commission  on  Homelessness  and  Poverty. 

From  1972  to  1979,  Ms.  Robinson  served  as  Assistant  Staff    i 
Director  of  the  ABA  Criminal  Justice  Section.   She  also  has 
worked  as  a  reporter  and  desk  editor  for  a  New  York  City  Ford 
Foundation-funded  effort  to  provide  better  news  coverage  for  the 
city's  Black  and  Puerto  Rican  communities. 

Ms.  Robinson  graduated  Magna  Cum  Laude  and  Phi  Beta  Kappa  from 
Pembroke  College  in  Brown  University,  (Providence,  R.I.),  with  a 
degree  in  Political  Science  in  1968.   She  served  as  Chair  of  the 
National  Forum  on  Criminal  Justice  from  1991  until  1993,  and  was 
an  ex  officio  member  of  the  Board  of  Regents  of  the  National 
College  of  District  Attorneys  from  0.979  to  1993.   She  also  has 
sat  on  the  Boards  of  Directors  for  the  National  Association  of 
Women  in  Criminal  Justice  and  VALOR  (the  Victim  Assistance  Legal 
Organization).   She  currently  serves  on  the  Advisory  Board  of  the 
Federal  Sentencing  Reporter. 

Ms.  Robinson  is  married  and  has  a  10-year-old  son.   She  and  her 
family  reside  in  Washington,  D.C. 


413 


U.S.  Department  of  Justice 


Wathinfum.  DC.  20530 

4PR  2  6  1994 


Stephen  D.  Potts 

Director 

Office  of  Government  Ethics 

Suite  500 

1201  New  York  Avenue,  N.w. 

Washington,  D.C.   20005-3919 

Dear  Mr.  Potts: 

In  accordance  with  the  provisions  of  Title  I  of  the  Ethics  in 
Government  Act  of  1978  as  amended,  I  am  forwarding  the 
financial  disclosure  report  of  Laurel  0.  Robinson  who  has  been 
nominated  by  the  President  to  serve  as  Assistant  Attorney 
General,  Office  of  Justice  Programs,  Department  of  Justice. 

We  have  conducted  a  thorough  review  of  the  enclosed  report,  and 
have  counseled  Ms.  Robinson  who  will  recuse  herself  or  seek  a 
waiver  before  participating  in  any  matters  affecting  her 
financial  or  personal  interests. 

In  light  of  this  counseling,  I  am  satisfied  that  the  report 
presents  no  conflicts  of  interest  under  applicable  laws  and 
regulations  and  that  you  can  so  certify  to  the  Senate  Judiciary 
Committee. 

Sincerely, 


Stephen  R.  Colgate 
Assistant  Attorney  General 
for  Administration 

Enclosure 


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BIOGRAPHICAL  INFORMATION  (PUBLIC) 


1.  Full  name  (include  any  former  names  used.) 

Nancy  Elizabeth  Gist 
Nancy  Gist  Preston 

2.  Address:   List  current  place  of  residence  and  office 
address (es) . 

Home:      90  Worcester  Street 
Boston,  MA   02118 

Office:    80  Boylston  Street 
Suite  600 
Boston,  MA   02116 

3.  Date  and  place  of  birth. 

December  30,  1948 
Chicago,  Illinois 

4.  Marital  Status  (include  maiden  name  of  wife,  or  husband's 
name).   List  spouse's  occupation,  employer's  name  and 
business  address (es). 

Single. 

5.  Education:   List  each  college  and  law  school  you  have 
attended,  including  dates  of  attendance,  degrees  received, 
and  dates  degrees  were  granted. 

Wellesley  College 
September,  1965  -  May,  19S9 
B.A.  in  Economics,  May  1969 

Yale  Law  School 

September,  1970  -  June,  1972 

J.D. ,  June,  1973 

Northwestern  Law  School 
September,  1972  -  June,  1973 
Special  Student 

6.  Employment  Record:   List  (by  year)  all  business  or 
professional  corporations,  companies,  firms,  or  other 
enterprises,  partnerships,  institutions  and  organizations, 
nonprofit  or  otherwise,  including  firms,  with  which  you  were 
connected  as  an  officer,  director,  partner,  proprietor,  or 
employee  since  graduation  from  college. 

I  have  been  employed  by: 


427 


Committee  for  Public  Counsel  Services,  Boston,  MA, 
1984  -  present;  deputy  chief  counsel  and  acting 
chief  counsel 

Spangenberg  Group,  Newton,  MA,  1988,  1989,  1990; 
consultant 

Midwest  Legal  Services,  Detroit,  MI,  1981  -  1984; 
director 

UAW  Legal  Services  Plan,  Detroit,  MI,  1978  -  1981; 
assistant  director 

Blue  Cross  &  Blue  Shield  Associations,  Chicago,  IL, 
1977  -  1978;  senicr  manager 

Lawyers'  Committee  for  Civil  Rights  Under  Law,  Chicago, 
IL,  1974  -  1977;  staff  attorrey 

U.S.  Equal  Employment  Opportunity  Commission,  Chicago, 
IL,  1973  -  n'>74;  trial  attorney 

SPA/Redco,  Inc.,  Chicago.  IL,  1972,  1973;  research 
assistant 

Hyde  Park  Bank  and  Trust  Co.,  Chicago,  IL, 
1970,  1971;  research  assistant 

Cooperative  Program  for  Educational  Opportunity, 

Chicago,  IL,  1969  -  1970;  assistant  to  the  director 

I  have  served  on  the  boards  of  directors  of  the  following 
non-profit  corporations: 

National  Legal  Aid  and  Defender  Association, 
Washington,  DC,  19?3  -  present 

American  Prepaid  Legal  Services  Institute, 
Chicago,  IL,  1984  -  1990 

Teens  as  Community  Resources,  Boston,  MA, 
1993  -  present 

Harvard  Street  Neighborhood  Health  Center, 
Boston,  MA,  1993  -  present 

Museum  of  Afro  American  History,  Boston,  MA, 
1987  -  1990 

Transafrica,  Boston,  MA,  1989 

Military  Service;   Have  you  had  any  military  service?   If 

2 


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so,  give  particulars,  including  the  dates,  branch  of 
service,  rank  or  rate,  serial  number  and  type  of  discharged 
received. 

No. 

8.  Honors  and  Awards t   List  any  scholarships,  fellowships, 
honorary  degrees,  and  honorary  society  memberships  that  you 
believe  would  be  of  interest  to  the  Committee. 

None. 

9.  Bar  Associations;   List  all  bar  associations,  legal  or 
judicial-related  committees  or  conferences  of  which  you  are 
or  have  been  a  member  and  give  the  titles  and  dates  of  any 
offices  which  you  have  held  in  such  groups. 

Member,  Commission  on  Federal  Appointments  (to  advise 
Senators  Kennedy  and  Kerry  on  appointments  to 
federal  judiciary,  U.S.  Attorney  and  U.S.  Marshal 
positions)  ;  appointee1  by  Senator  Edward  Kennedy, 
1993. 

Member,  Criminal  Justice  Act  Board,  appointed  by  U.S. 
District  Court  for  Massachusetts,  1993  -  present. 

Participated  as  a  foreign  expert  in  "The  Right  to  Legal 
Representation  —  A  Public  Defender  Service  in  a 
Democratic  South  Africa,"  a  conference  co-sponsored 
by  the  South  African  Legal  Defence  Fund  and  U.S. 
Lawyers'  Committee  for  Civil  Rights  Under  Law, 
Johannesburg,  South  Africa,  1992 

Member,  Committee  to  Evaluate  the  Performance  of  the 
Criminal  Justice  Act  Plan  for  the  District  of 
{  Massachusetts,  appointed  by  First  Circuit  Court  of 

Appeals  and  the  U.S.  District  Court  for 
Massachusetts,  1992-93 

Member,  Committee  to  Advise  the  First  Circuit 

Concerning  the  Re-appointment  of  the  Federal  Public 
Defender  for  the  District  of  Massachusetts, 
appointed  by  First  Circuit  Court  of  Appeals,  1987 
and  1991 

Board  Member,  National  Legal  Aid  and  Defender 
Association,  1988  -  present 

Chair,  Commonwealth  of  Massachusetts  Advisory  Committee 
on  Prepaid  Legal  Services,  appointed  by  Governor 
Michael  Dukakis,  1989  -  present 


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Member,  Standing  Committee  on  Legal  Aid  and  Indigent 
Defendants,  American  Bar  Association,  1993  -  present 

Board  Member,  American  Prepaid  Legal  Services 
Institute,  1984  -  1990 

Member,  Standing  Committee  on  Prepaid  Legal  Services, 
American  Bar  Association,  1984  -  1990 

Member,  Delivery  of  Legal  Services  Section  Council, 
Massachusetts  Bar  Association,  1986  -  1990 

I  have  also  been  a  member  of: 

National  Conference  of  Black  Lawyers 
National  Bar  Association 
National  Lawyers  Guild 

Massachusetts  Black  Lawyers  Association 
Massachusetts  Black  Women  Attorneys 
Wolverine  Bar  Association  (Michigan) 
Cook  County  Bar  Association  (Illinois) 
Massachusetts  Council  on  Public  Justice 
American  Civil  Liberties  Union 

10.  Other  Memberships:   List  all  organizations  to  which  you 
belong  that  are  active  in  lobbying  before  public  bodies. 
Please  list  all  other  organizations  to  which  you  belong. 

Lobbying: 

National  Legal  Aid  and  Defender  Association 
American  Bar  Association 

Other: 

Museum  of  Afro  American  History  (Boston) 
WGBH  Public  Television  (Boston) 
Coalition  of  100  Black  Women 
Institute  for  Contemporary  Art  (Boston) 

11.  Court  Admission:   List  all  courts  in  which  you  have  been 
admitted  to  practice,  with  dates  of  admission  and  lapses  if 
any  such  memberships  lapsed.   Please  explain  the  reason  for 
any  lapse  of  membership.   Give  the  same  information  for 
administrative  bodies  which  require  special  admission  to 
practice. 

Supreme  Court  of  Illinois,  1973 

State  Bar  of  Michigan,  1982 

Supreme  Judicial  Court  of  Massachusetts,  1985 

12.  Published  Writings;   List  the  titles,  publishers,  and  dates 


430 


of  books,  articles,  reports,  or  other  published  material  you 
have  written  or  edited.   Please  supply  one  copy  of  all 
published  material  not  readily  available  to  the  Committee. 
Also,  please  supply  a  copy  of  all  speeches  by  you  on  issues 
involving  constitutional  law  or  legal  policy.   If  there  were 
press  reports  about  the  speech,  and  they  are  readily 
available  to  you,  please  supply  them. 

"Assigned  Counsel:   Is  the  Representation  Effective?" 
Volume  4,  Number  2  Criminal  Justice  20,  Summer  1989 

13.  Health;   What  is  the  present  state  of  your  health?   List  the 
date  of  your  last  physical  examination. 

Good.   Last  examination  December,  1993. 

14.  Public  Office;   State  (chronologically)  any  public  offices 
you  have  held,  other  than  judicial  offices,  including  the 
terms  of  service  and  whether  such  positions  were  elected  or 
appointed.   State  (chronologically)  any  unsuccessful 
candidacies  for  elective  public  office. 

Commonwealth  of  Massachusetts  Advisory  Committee  on 
Prepaid  Legal  Services,  appointed  by  Governor  Michael 
Dukakis,  1989-present. 

15.  Legal  Career; 

a.  Describe  chronologically  your  law  practice  and 
experience  after  graduation  from  law  school 
including: 

1.  whether  you  served  as  clerk  to  a  judge,  and  if 
so,  the  name  of  the  judge,  the  court,  and  the 
dates  of  the  period  you  were  a  clerk; 

No. 

2.  whether  you  practiced  alone,  and  if  so,  the 
addresses  and  dates; 

No. 

3.  the  dates,  names  and  addresses  of  law  firms  or 
offices,  companies  or  governmental  agencies 
with  which  you  have  been  connected,  and  the 
nature  of  your  connection  with  each; 

b.  l.  What  has  been  the  general  character  of  your  law 

practice,  dividing  it  into  periods  with  dates 
if  its  character  has  changed  over  the  years? 


431 


2.  Describe  your  typical  former  clients,  and 
mention  the  areas,  if  any,  in  which  you  have 
specialized. 

U.S.  Equal  Employment  Opportunity  Commission 
536  S.  Clark  Street 
Chicago,  IL   60605 

Trial  Attorney,  June,  1973  -  1974 

Assisted  senioi  trial  counsel  in  preparation  of 
pleadings  and  discovery  for  Title  VII  cases. 

Lawyers'  Committee  for  Civil  Rights  Under  Law 
185  N.  Wabash  Avenue 
Chicago,  IL   60601 

Staff  Attorney,  ±974  -  1977 

Coordinated  assignments  to  and  worked  with  member 
law  firms  providing  pro  bono   counsel  to  individual 
and  community  organization  clients,  primarily  in 
prisoners'  rights  matters. 

Blue  Cross  &  Blue  Shield  Associations 
676  N.  St.  Clair  Street 
Chicago,  IL   60611 

Senior  Manager,  1977  -  1978 

Worked  on  development  of  prototype  prepaid  legal 
services  benefit  package,  underwriting  and 
administration  systems,  and  educational  materials. 

Chicago  Volunteer  Legal  Services  Foundation 
100  N.  LaSalle 
Chicago,  IL   60602 

Volunteer  Attorney,  1974  -  1977 

Provided  pro  bono   counsel  to  indigents  in  civil 
legal  matters,  primarily  adoptions,  wills,  divorces, 
landlord-tenant  and  consumer  matters. 

Since  1975,  I  have  worked  almost  exclusively  as  an 
administrator  and  manager  of  various  legal  services 
delivery  systems: 

UAW  Legal  Services  Plan 
7430  Second  Avenue 
Detroit,  MI   48202 


432 


Assistant  Director,  1978  -  1981 

Established  and  managed  private  contracting 
attorney  component  of  nationwide  prepaid  legal 
services  program  for  union  members. 

Midwest  Legal  Services 
Renaissance  Center 
Detroit,  MI   48216 

Director,  1981  -  1984 

Established,  administered  and  consulted  regarding 
union-sponsored,  employer-funded  prepaid  legal 
services  plans. 

Committee  for  Public  Counsel  Services 
80  Eoylston  Street 
Boston,  MA   02116 

Deputy  Chief  Counsel,  1984  -  present 

Established  and  administer  private  assigned 
counsel  component  of  statewide  indigent  defense 
system. 

c.    1.  Did  you  appear  in  court  frequently, 

occasionally,  or  not  at  all?   if  the  frequency 
of  your  appearances  in  court  varied,  describe 
each  such  variance,  giving  dates. 

Rarely. 

2.  What  percentage  of  these  appearances  was  in: 

(a)  federal  courts; 

(b)  state  courts  of  record;  100% 

(